The “New” District Court Activism in Historical As Umpires, Not Players

39707-nys_72-2 Sheet No. 1 Side A 01/15/2018 10:23:44 ALL H ANDERBILT T. V New York City ISSUE 2 Washington Square RTHUR VOLUME 72 A ANNUAL SURVEY ANNUAL NEW YORK UNIVERSITY SCHOOL OF LAW OF AMERICAN LAW NEW YORK UNIVERSITY \\jciprod01\productn\n\nys\72-2\FRONT722.txt unknown Seq: 1 15-JAN-18 9:55 39707-nys_72-2 Sheet No. 1 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 1 39707-nys_72-2 39707-nys_72-2 Sheet No. 5 Side A 01/15/2018 10:23:44 R R R R R R R R R R . . . . 193 ...... 205 ...... 209 ...... 202 ...... 194 ...... 198 187 ...... 215 ...... 210 ...... 194 JESSICA A. ROTH* ...... 188 1. Overcharging 2. Undercharging 1. Background 2. Mass Incarceration 3. Alternatives to 4.Incarceration Collateral Consequences of Conviction IN CRIMINAL JUSTICE REFORM A. The Overly Punitive State B. The Excesses of Prosecutorial Discretion Historically, the debate over the judicial role has centered on the consti- I. Introduction * Associate Professor of Law, Benjamin N. Cardozo School of Law. I am II. A Summary of the “New” District Court Activism THE THE “NEW” DISTRICT COURT ACTIVISM speeches; and through advocacy within and This beyond Article summarizes the this judicial activity, branch. places it assesses its in value as historical well as context, its risks. and moreover, been concerned solely with the “in-court” behavior appellate judges as they carry of out their power and duty “to Article say what the law III is” in the context of resolving “cases and controversies.” This Article seeks to deepen the discussion of the appropriate role of Article III judges by broaden- an between distinguishing by and judges; appellate, as well as trial, to it ing Article III judge’s “decisional” activities on the one hand, and the “hortatory” and other judge’s activities on the other. To that end, the Article focuses on a cohort of deeply respected federal district judges-many, although not all, experienced Clinton appointees in the Southern and Eastern Districts of New York–who,judi- of norms conventional challenged have decade, last the over cial behavior to urge reform of fundamental aspects of the federal criminal justice system. These “new” judicial activists have made their case for reform in the pages of their judicial opinions, often in dicta; in articles and tutional and administrative law decisions Court, of with an the occasional glance United at the States Federal Courts of Supreme Appeals. It has, grateful to Michelle Benjamin Lawsky, Burt Adams, Neuborne, Daniel Richman, and Kate Stith for very helpful Gabriel J. comments Chin, on earlier Bruce drafts of this Green, paper and Schmooze Kyron to participants and in Huigens, CrimFest the 2016 2016, Ethics where progress. Thanks also this to Ben Cain, Article Rachel Karpoff, and Josh was Ontell for excellent presented research assistance. as a work in \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 1 15-JAN-18 9:53 39707-nys_72-2 Sheet No. 5 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 5 39707-nys_72-2 39707-nys_72-2 Sheet No. 5 Side B 01/15/2018 10:23:44 R R R R R R R R R R R R R R R R R ...... 265 ...... 252 2 ...... 246 ...... 250 ...... 240 ...... 228 ...... 267 1 ...... 236 ...... 219 ...... 259 I. Booker ...... 265 INTRODUCTION ...... 268 ...... 236 ...... 269 ...... 272 ...... 228 Clemency Judges and Exit Interviews Channel 1. A Greater Institutionalized Role in 2. Annual Open-Ended Surveys of District Court 3. A Judicial Clearinghouse and Dissent 3. Criminal Discovery 1. The Impact 2.of Social and 3.Political Context Shifting Judicial 4.Roles and Norms The New Media Environment A. The Value of B.the “New” District Court Activism . . Reasons for Concern C. 252 Possible New Mechanisms of Judicial Input Context A. A Search for B. Historical Parallel Why Now? You do not have to agree fully with Chief Justice Roberts’ insis- The role of an umpire and a judge is critical. They make sure [F]or too long, too many judges (including me) have been too 1.Statement States, United the of Court Supreme Justice, Chief Roberts, John 2. Jed S. Rakoff, U.S. Dist. Judge, S. Dist. N.Y., Mass Incarceration and the V. Conclusion IV. Evaluating the “New” District Court Activism VI. Appendix III. The “New” District Court Activism in Historical as umpires, not players. When the ground rules are relatively clear, tence that Supreme Court Justices never do anything but call balls and strikes to believe that, most of the time, judges should try to act everybody plays by the rules. But it is a limited went to role. a Nobody ballgame to ever see the umpire. quiet about an evil of incarceration of people which in the United we States today. are ourselves a part: the mass During Nomination Hearings Before the Senate Judiciary Committee 2005) (Sept. 12, (transcript roberts.statement available [https://perma.cc/69M3-GK8Z]). at http://www.cnn.com/2005/POLITICS/09/12/ “Fourth Principle,” Speech at (transcript Harvard Law available Sch. Conference at conference-full-speech/ [https://perma.cc/9T6H-7YUK]). (Apr. https://bol.bna.com/judge-rakoff-speaks-out-at-harvard- 10, 2015) 188 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 2 15-JAN-18 9:53 39707-nys_72-2 Sheet No. 5 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 5 39707-nys_72-2 39707-nys_72-2 Sheet No. 6 Side A 01/15/2018 10:23:44 N.Y. IMES , Previ- 3 5 N.Y. T , Mass Incarceration: The Silence of the Judges (Jan. 9, 2014), http://www.nybooks.com/arti The Financial Crisis: Why Have No High-Level Executives OOKS From the Bench, a New Look at Punishment . B EV Jed S. Rakoff, N.Y. R , see also , Jed S. Rakoff, ; May 21, 2015), http://www.nybooks.com/articles/2015/05/21/mass- Other judges—including, for example, now-former ( 4 See id. See, e.g. OOKS By and large, President Bill Clinton appointed these judges in 3. 4. 5. Stephanie Clifford, . B (quoting Douglas Berman). EV and declared that judges had a duty to speak out against it. R ously, he had engaged in a similar campaign regarding what he saw as federal prosecutors’ failure to aggressively prosecute white-collar criminals and corporations in the wake 2007–08. of the financial crisis of housing, and educational opportunities of persons previously convicted of a crime. As Douglas Berman recently described the nomenon, phe- “A growing number of federal judges, usefully insulated by life tenure, are feeling a need to speak out[,] . . . moved by the broader public conversation about the need for reforms.” the 1990s. Most of them had been on the bench for at least a decade before they engaged in this activity. Some, like Judges Gleeson Judge John Gleeson in the Eastern District of New York—have focused on issues such as prosecutorial overcharging and the collateral consequences of convictions on the employment, in drug cases (Aug. 26, bench-a-new-look-at-punishment.html?_r=0 2015), [https://perma.cc/7DAR-D6NH] https://www.nytimes.com/2015/08/27/nyregion/from-the- (quoting Douglas Berman, law professor at the Ohio University Moritz College of Law). Moreover, “certain [judges] say, ‘That broader conversation ought to be reflected in the work that I do, not just in the work that the political branch does.’” Id. causes them to look more like players than umpires. For example, as noted in the quote at the beginning of this Article, around 2015, Senior Judge Jed Rakoff started in to call the attention in speeches Southern and popular District articles incarceration”—ato of “mass non-judicial term New favored by York the political left— 2018]the strike zone is well-defined, and the umpire/judge should game seek THE is to “NEW” apply DISTRICT working the COURT rules ACTIVISM well, fairly and an blend into the background. What should happen, ienced umpire/judge believes that the rules are harming the though, game, when an exper- Notwith- injury? serious with players the of more or one threatening standing Justice Roberts’s insistence that “[n]obody ever went 189 to a ballgame to see the umpire,” over the last decade, a cohort of well- respected and experienced federal trial judges have engaged in an unmistakably public campaign for criminal justice reform that \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 3 15-JAN-18 9:53 incarceration-silence-judges/ [https://perma.cc/Y9SQ-SKLN]. cles/2014/01/09/financial-crisis-why-no-executive-prosecutions/ [https://perma .cc/7DAR-D6NH]. Been Prosecuted? 39707-nys_72-2 Sheet No. 6 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 6 39707-nys_72-2 39707-nys_72-2 Sheet No. 6 Side B 01/15/2018 10:23:44 . . EV , 73 RAFT OLO C note 6, ENSE OF L. R L. RENDS IN U. C S THE Second, UNY T 7 : supra C , 73 , AKING , 17 , ENCH UTURE : M F B ORRIS M in , cf. CTIVISM EDERAL . 1752, 1756 (2006–2007) A F EV . L. R UDICIAL J INN Frank B. Cross & Stefanie A. Lindquist, M Moving Toward a More Perfect World: Achiev- Judicial Activism and Conservative Politics YTH OF , 91 M EADERSHIP ON THE see also HE , L 110 (2011) (“[I]t is fair to say that in the great ORRIS III, T 3 (2006) (“‘[A]ctivist’ turns out to be little more than a , Fern Fisher, EINSTEIN But I use it nevertheless, for two reasons. First, it B. M W 6 debates that have not fully explored the hortatory 8 See, e.g. OOSEVELT ACK ECISIONS J R EFFREY Keynote Address at the Annual Meeting of the Conference of Chief Justices Do Liberals and Conservatives Differ in Judicial Activism? . 1139, 1141 (2002); 1141 1139, . J D , Lawrence H. Tribe, Senior Counselor for Access to Justice, U.S. , , 2011, at 1, 4 (describing “activism” as “the opposite of passivity—a EV ERMIT OURT K C . L. R L. . OURTS See, e.g. See, e.g. 1401, 1401 (2002) (“Everyone scorns judicial ‘activism,’ that notoriously . CTIVISM OF C I call the project that these judges collectively engaged in the 6. 7. 8. As Ernest Young has observed, the utility of the term “judicial activism” is OLO EV A C UPREME TATE at 111 (describing some aspects of the work of Judge Jack Weinstein as “hyperac- L. R it taps into important debates about the proper role of the judge in our democracy, The Scientific Study of Judicial Activism AND captures the sense in which this behavior signifies an active and engaged judicial posture rather than a passive, reactive one. and Conference of State Court Administrators (July 26, 2010) and other forms of judicial activity described in this Article. ever, I How- call this activity the “new” activism precisely to distinguish it passivity that disclaims responsibility for the systems of which [judges are] . . . the stewards.”). In recent years, some judges have embraced the “activist” term when used in this sense. Activism Judicial of Definition New a Through Justice to Access Equal ing S S use the term “activism” at all, given that it has become than little an epithet more for describing judges and decisions with which the speaker disagrees. 190and Rakoff, were long-time federal prosecutors before ascending to NYUhas who Iowa, in Bennett Mark Judge as such others, but bench, the ANNUAL SURVEY OFplayed AMERICAN a prominent LAW role in this effort, backgrounds. had The appendix different to this professional Article [Vol. contains 72:187 a table setting forth the professional name backgrounds, and year party of of the President cussed appointment, in the who text of and appointed this Article. the judges dis- “new” district court activism in criminal justice reform. I hesitate to \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 4 15-JAN-18 9:53 rhetorically charged shorthand for decisions the speaker disagrees with.”); Frank H. Easterbrook, slippery term.”). Dep’t of Justice, (“At the core of the criticisms of judicial activism lies a concern that the judiciary is acting outside its proper judicial role.”). majority of cases, the term ‘activist’ is thrown around by those whose ox has been gored.”); laws, the legal system, and the administration of justice.”); tive” rather than “activist”). “it focuses attention on the judiciary’s institutional role rather than the merits of particular decisions.” Ernest A. Young, 285, 286–87 (2014) (embracing vision of judicial activism emphasizing judges do less on what the bench and more judges’ “stewardship over the improvement of U. 39707-nys_72-2 Sheet No. 6 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 6 39707-nys_72-2 39707-nys_72-2 Sheet No. 7 Side A 01/15/2018 10:23:44 . G 1 ’ . ING EV -W ENT . S 457, 459 L. R IGHT . note 8, at ED F EV R , Neil S. Siegel, , 8 supra AYTON note 8, at 1144 (“ju- XTREME U. D . U.L. R See, e.g. E M . 555, 558 (2009–2010) A HY supra Limits of Judges’ Learning, EV , 20 11 Lower Court Constitutionalism: : W , 61 Unlike the “old” judicial L. R 9 OBES AUL R P E D , 59 ADICALS IN note 6, at 91 (describing the characteristics of a 42–43 (2005) (“[I]t is best to measure judicial , R note 6, at 4 (noting the relative lack of attention to supra , MERICA Judicial Opinions and Sentencing Guidelines UNSTEIN supra A , and none examining this recent burst of district ORRIS R. S 10 M ORRIS ASS M C , RONG FOR , W RE See, e.g. See generally A See, e.g. Finally, the quotation marks around “new” signify an acknowl- 9. 10. 11. Given the dangers in attempting to “characterize[e] a collective judicial 46, 46 (1995). . OURTS EP R erwise cajoling other local actors. While there is a voluminous literature on decisional activism, there other forms of activity, little is on the role of the federal district court considerably less on judge these in general, activism, activism, which might also be called “decisional activism,” the “new” Article of exercise judge’s the to limited not is activism court district III power. Although some of it opinions, occurs much in of the it is context set of forth outside judicial of judicial opinions entirely—e.g., in in extrajudicial speeches dicta. Some of it also and writings, through the issuance occurs of individual court rules, or oth- court engagement in criminal justice reform. edgement that much of this activity—while distinct from the “old” tropes of judicial activism debates—is not entirely new. To be sure, judges in other eras occasionally questioned the wisdom and legal- C 2018] from the types of behavior traditionally characterized as judicial activism, e.g., decisions that THE invalidate “NEW” the DISTRICT actions COURT of ACTIVISManother branch of government or depart from precedent. 191 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 5 15-JAN-18 9:53 1759 (“The most common standard for evaluating judicial activism is the extent to which judges invalidate legislative enactments.”); Young, dicial activism” also is commonly used to describe decisions that: “depart[text ] from and/or history; . . . ‘maximalist’ depart[holdings rather than narrow or ] ‘minimalist’ ones; . . . from [or] exercis[e] judicial precedent; . that action judicial any describe to used is also term The powers.”). remedial broad . . issue broad or reflects the partisan or ideological preferences of the judge. Interring the Rhetoric of Judicial Activism activism by seeing how often a court government, strikes especially down those of the Congress.”); actions Cross of & other Lindquist, parts of gained considerable company, see Jack B. Speaking, and Weinstein, Acting: Part II Speaking and Part III Acting (2012) (noting scholarly focus on work of the U.S. Supreme Court to the exclusion the to Court Supreme U.S. the of work on focus scholarly (noting (2012) of role played by lower federal courts). For one judge who notable in many exception, ways pioneered written the “new” by district court a activism but has since (explaining contemporary conservative critiques). “Weinstein opinion” as often lengthy, “graced with scintillating prose,” sometimes including a table of contents, photographs, charts, and appendices). view,” this Article—like others of a some trends in the comments similar and criticisms” made by (admittedly the most vocal) qualitative ilk—attempts “to discern judges. Jeffrey O. Cooper, the work of federal district courts); Doni Gewirtzman, Circuit Court Discretion in a Complex Adaptive System (1994). 39707-nys_72-2 Sheet No. 7 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 7 39707-nys_72-2 39707-nys_72-2 Sheet No. 7 Side B 01/15/2018 10:23:44 , AN EIN- M RANK W F HE , United : T DWARD EROME AND The New Repub- J : E See, e.g. , H But it could also . 950, 958–62 (1976). USTICE 15 EV J See, e.g. Portrait of the Judge as an EARNED (1949). However, histor- However, (1949). But the fact that this that fact the But , L 12 L. R USTICE . 763, 764 (2014). J IGHT AND EV R UNTHER ORNELL C G Part II.A.1. at 293. MERICAN , 61 A ERALD SMU L. R URSUIT OF G P See infra See id. N , 67 , I EALITY IN see also R 4–5, 113 (2004). At a minimum, then, this is a substantial burst substantial a is this then, minimum, a At ELSON 14 UDGE E. N YTH AND J Clues of Integrity in the Legal Reasoning Process: How Judicial Biogra- : M 192–215 (2d ed. 2011) (describing some of Hand’s extrajudicial ILLIAM RIAL W T is notable. is UDGE AWYER AND 13 See J L The remainder of this Article proceeds as follows. In Part II, I 15. As discussed further below, precursors of the “new” judicial activism may 12. Judge Jerome Frank of the Second Circuit is one prominent example of 14. Judge Learned Hand, who sat on the United States District Court for the 13. ). Later in his career, Hand questioned whether he had gone too far in his politi- his in far too gone had he whether questioned Hand career, his in Later ). OURTS ON C AND THE FELD AS and the Supreme Court, as well as Congress, actors, the the academy, Executive, and the local public. summarize the “new” district court activism, with a section devoted to each of the two overarching issues that have attracted substantial and state punitive overly our decade: past the over attention judicial the excesses of prosecutorial discretion. “new” district court activism in historical context. This section notes In Part III, I place the reflect the emergence of a more robust model Article III judge, especially of the federal district court judge, one that the role of the provides for an active dialogic engagement with Courts of Appeals activity is happening in the federal district courts, the lowest level of level lowest the courts, district federal the in happening is activity our federal judiciary (where the famously sionate meticulous but Edward dispas- Weinfeld for judge), generations exemplified the ideal be found in the 1980s, in the federal judiciary’s vocal reaction to Congress’s expan- Congress’s to reaction vocal judiciary’s federal the in 1980s, the in found be sion of mandatory mandatory sentencing guidelines. minimum sentencing statutes and the creation of the Activist: Jerome Frank and the Supreme Court an appellate judge who frequently used his opinions to question “the constitutionality of past rulings,” and “[e]laborate reasons that supported change,” wisdom or including citation to unconventional sources such as fiction, psychological literature, and the history of science. Robert J. Glennon, Jr., of activity that we have seen iterations of before. 192practices. government and laws various of ity NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 6 15-JAN-18 9:53 Southern District of New York United States Court of Appeals for the Second Circuit, stands for out as one of the few fifteen years before he historical examples of a was district judge who explicitly questioned prevailing law and elevated to the governmental practices in his opinions and in extrajudicial fora. activities as a district court judge, including Party’s Convention his in 1912 and his participation writings on political subjects in in the Progressive lic cal activities while a sitting judge. ically, judges “refrained from giving interviews, rarely wrote books, and avoided the avoided and books, wrote rarely interviews, giving from “refrained judges ically, limelight, preferring to let their opinions speak for themselves.” Harvey Rishikof & Bernard Horowitz, phies Shed Light on the Rule of Law Frank also was a prolific writer of books and articles. vailing obscenity standards); States v. Kennerly, 209 F. 119, 120-21 (S.D.N.Y. 1913) (Hand, J.) (questioning pre- 39707-nys_72-2 Sheet No. 7 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 7 39707-nys_72-2 39707-nys_72-2 Sheet No. 8 Side A 01/15/2018 10:23:44 which realigned power dynam- 16 II. ACTIVISM , there are two overarching themes. The first is the United States v. Booker, A SUMMARY OF THE “NEW” DISTRICT COURT supra This first section is primarily descriptive, summarizing and cat- Part IV then takes a step back to evaluate the benefits and the 16. 543 U.S. 220 (2005). criminal convictions that make it difficult for a person, once victed of con- a crime, to fully participate in society. The second excesses of prosecutorial discretion with respect is to (1) charging de- the cisions, and (2) criminal discovery. activists in the Trump era. aloguing what I am calling noted the “new” district court activism. overly punitive nature of the criminal justice system, which includes As (1) the overuse of imprisonment as a criminal sanction (“mass incarceration”), and (2) the collateral consequences attached to its social and economic judges, costs; including members the of example the United set and States the new Supreme by media era. Court; higher level risks of “new” judicial activism, including whether it has been effective in achieving reform and the extent to which it challenges traditional concepts of the judicial role. It finds these federal that district there court is judges’ efforts value to to reshape the workings of the criminal justice system, but that there are aspects of this en- terprise that merit a hard look. Finally, the Article considers some alternative mechanisms to channel judicial expertise, energy, and concern over the future of cludes the with criminal some thoughts justice about the system calculus and for would-be con- “new” ics at the district court level by holding unconstitutional the United States Sentencing Guidelines as a violation of a defendant’s right to trial by jury to the extent they were clude, a mandatory. broader cultural Other shift in factors thinking about in- incarceration and 2018]the absence of historical parallels for the existing federal district ferment courts THE in over “NEW” DISTRICT criminal the COURT justice ACTIVISMissues. It then explores some of the potential contributing “new” factors district court to activism. the These include advent the decision of Supreme in Court’s the 193 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 7 15-JAN-18 9:53 39707-nys_72-2 Sheet No. 8 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 8 39707-nys_72-2 39707-nys_72-2 Sheet No. 8 Side B 01/15/2018 10:23:44 . AL OR- V UIDE- F ENAL- 5–15 With P G AKE , 39 19 W ONGRESS In the 1950s, INIMUM , 28 C M 691, 696 (2010); ENTENCING See id. : S EPORT TO The judge could se- ANDATORY R UDGING 17 Under the Sentencing RIMINOLOGY J , M 21 N ’ PECIAL Congress also created a new EAR OF OMM . L. & C : A S A : 20 , F C RIM YSTEM J. C S ABRANES Rethinking Mandatory Minimums A Short History of American Sentencing: Too Little ENTENCING , 100 1. Background A. C USTICE ´ 9 (1998). E J That fundamentally changed in the 1980s, OS Id. U.S. S 18 A. The Overly Punitive State OURTS & J RIMINAL C C TITH see also S The Return of Federal Judicial Discretion in Criminal Sentencing EDERAL ATE EDERAL F K Hon. Nancy Gertner, Stephen J. Schulhofer, 28 U.S.C. § 991 (2012) (establishing the U.S. Sentencing Commission 199, 200–01 (1993) (reviewing history of federal mandatory minimum at 201; F . 693, 697 (2005). . See See See See EV Id. EV For most of American history, federal trial court judges en- 18. 17. 19. 20. Pub. L. No. 98-473, 98 Stat. 1987 (codified 21. as amended at 18 U.S.C. L. R U. L. R EST the Sentencing Reform Act of 1984, TIES IN THE LINES IN THE lect the sentence the judge deemed most statutory maximum appropriate, sentence, drawing up upon the to judge’s own the experience in sentencing. Reform Act, judges were required to impose narrow range dictated by a a calculation of various factors articulated sentence within a body, the United States Sentencing Commission, with and creating a charged set it of sentencing guidelines judges’ that sentencing discretion would in constrain all cases. for many drug crimes and required that judges impose at least the crimes. those of convicted person any on sentence minimum when Congress enacted statutory mandatory minimum sentences joyed broad latitude in imposing sentences. 194 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 8 15-JAN-18 9:53 sentencing statutes). Although there have been mandatory minimum penalties for some federal crimes since the beginning of the nation, they were rare until gress Con- seriously got into the business of regulating narcotics. Law, Too Much Law, or Just Right (1991). §§ 3551–673 (1984)). Susan R. Klein, books.” Congress established mandatory minimum sentences for certain but drugs it offenses, repealed nearly all of those laws in 1984, the Congress reinstated 1970s, many mandatory deeming minimum penalties for them drugs offenses a failure. In and created new, consecutive ones for the use crimes. From of 1986 a through gun 1990, in Congress furtherance repeatedly of enacted drug mandatory mum sentences mini- for additional crimes or “stiffened some of those already on the as an independent commission in the judicial branch, consisting of members seven and one voting nonvoting member, to be appointed by the President, with the advice and consent of the Senate). By least statute, three federal the judges. Commission must include at 39707-nys_72-2 Sheet No. 8 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 8 39707-nys_72-2 39707-nys_72-2 Sheet No. 9 Side A 01/15/2018 10:23:44 R R R R , 110th 22 Even beyond Even at times 27 29 , courts used their deci- , federal judges also Mistretta 11 (1989). . at 5 n.12 (collecting opinions and EP at 5 & n.12. at 67–72 (describing structure of the has continuously registered its 17, . R 17, 23 17, NN Fear of Judging A Before the Supreme Court upheld . note note N note and the challenge brought decades 25 ’ supra supra over two hundred district court judges supra OMM , , , 26 , C note 11, at 47–48 (after And, as Kate Stith and Judge Jose Cabranes Mistretta 24 ABRANES ABRANES ABRANES , https://www.fjc.gov/history/administration/administrative- supra 28 . ENTENCING & C TR & C & C & , federal judges by and large devoted themselves to Mandatory Minimum Sentencing Laws—The Issues: Hearing Before the , . C Administrative Agencies: Judicial Conference of the United States, 1948–Pre- TITH TITH TITH S U.S. S S S UD Cooper, 28 U.S.C. § 331 (1948) (setting forth authority of the Judicial Confer- Booker . J See See See See See See See, e.g. ED Between the Supreme Court’s resolution of the Guidelines’ Since Congress expanded the use of mandatory minimum sen- F 29. 22. 26. 488 U.S. 361, 388 (1989). 27. 23. 28. 25. 24. , the Guidelines against a separation of powers challenge in 1989 in Mistretta v. United States with the complicity of prosecutors, judges also “found” facts that holding the guidelines unconstitutional, many judges voiced their disapproval of the Guidelines as a opinions, policy matter in in their law judicial review before Congress. and popular articles, and in testimony held the Sentencing Reform Act unconstitutional. chronicled in their 1998 book, constitutionality in tencing statutes in the 1980s, federal judges have protested them as an unwarranted intrusion upon the judges’ previously sentencing authority. unfettered For example, the Judicial Conference, the official voice of the federal judiciary, opposition to mandatory minimum sentencing ports statutes to in Congress. its re- articles in which federal judges Guidelines). expressed their disapproval of the Sentencing sional powers to interpret and distinguish guidelines and their interstices). U.S. Sentencing Guidelines). 2018]in the Guidelines, including the type of role in offense, the THE offense, the “NEW” and DISTRICT the defendant’s COURT defendant’s ACTIVISMcriminal history. 195 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 9 15-JAN-18 9:53 the United States) (documenting “the Judicial Conference’s long-standing opposition to mandatory minimum sentencing schemes”). agencies-judicial-conference-united-states-1948-present-0 agencies-judicial-conference-united-states-1948-present-0 [https://perma.cc/VRT 8-UVDE]. Subcomm. on Crime, Terrorism & Homeland Sec. of the H. Comm. on the Judiciary Cong. 43–45 (2007) (statement of Judge Paul G. Cassell, Judicial Conference of protested the Sentencing Guidelines before into and effect, loudly after and often. they went interpreting and distinguishing specific guidelines. later in ence). The Judicial Conference was created in 1922 and was formerly known as the as known formerly was and 1922 in created was Conference Judicial The ence). Conference of Senior Circuit Judges. It changed its name and expanded membership in 1948. sent 39707-nys_72-2 Sheet No. 9 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 9 39707-nys_72-2 39707-nys_72-2 Sheet No. 9 Side B 01/15/2018 10:23:44 R R R R R note 357, 365 . supra 214 (2012) After all, , EV EP 31 A Trial Judge’s . R G ’ . L. R ABRANES But over time, AL ENT 30 . S in an effort to achieve a & C S. C ED F affirming trial judges’ TITH S 34 , 66 the law , , 24 Also, the Supreme Court’s at 6 (“Judges as a group aspire to be 33 at 90 (noting the temptation under see also 17, 17, note note on district courts’ discretion). supra supra and there were moments of renewed col- , , Koon 36 Weinstein on Sentencing note 11, at 46 (noting, in the years since the Guidelines’ Koon v. United States note 11, at 46. ABRANES ABRANES As Jeffrey Cooper observed, the decrease in overt supra 32 & C & C supra , United States v. Green, 346 F. Supp. 2d 259, 283–84 (D. Mass. , Kate Stith, TITH TITH S S Cooper, Cooper, and possibly released some of the pressure to rebel. 35 See, e.g. See See See See, e.g. To be sure, some judges never stopped registering their oppo- 34. 518 U.S. 81, 92, 99 (1996). 35. 30. 32. 33. Cooper, 36. 31. at 6 (noting that, as the Guidelines became entrenched, judicial criticism had the Guidelines at that point bound to apply. were law, which judges were duty- authority to depart from the Guidelines for reasons not considered of abuse for reviewed be would departures that holding and therein discretion gave back to trial judges a “modicum” of sentencing authority, much much of the most Guidelines ebbed, as voluble judges adjusted to individual the new order. judicial resistance to the resistance resistance did not necessarily indicate judicial acquiescence, but instead perhaps an understandable bec[ame] reluctance, an established “as part the of the guidelines legal beating landscape, one’s to head against continue the wall.” decision in 1996 in lective protest. For example, in 2002, Judge James Rosenbaum, the Chief Judge of the District of Minnesota, testified before the House Judiciary Committee that the Guidelines were too the subpoena to threatened Committee the response, In cases. drug harsh in many records of all cases in which Judge Rosenbaum had departed from vigilant law-abiders, and the Guidelines—whatever their faults . . . are, of the course, law.”). the binding Guidelines regime for judges to “reconsider factual ‘findings’ in order to alter the Guidelines calculation” or “manipulate their Guidelines calculation to avoid the results called for by the Guidelines”); Jack B. Weinstein, Second Impression of the Federal Sentencing Guidelines constitutionality was resolved, an “apparent diminution in the frequency of overt criticism” of the Guidelines has occurred); 17, “begun to dissipate—especially as new judges are appointed, some of whom welcome may reduced responsibility over criminal sentencing”). sition to the Guidelines, 196 avoided the Guidelines’ NYU harshest ANNUAL SURVEY application. OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 10 15-JAN-18 9:53 2004) (explaining impact of (1992) (quoting another district judge as bemoaning made charlatans that and dissemblers of us all. We spend our time “the plotting and schem- Guidelines have ing, bending and twisting, distorting and ignoring just result.”). (chronicling Judge Weinstein’s ongoing critical engagement with the guidelines). 39707-nys_72-2 Sheet No. 9 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 9 39707-nys_72-2 39707-nys_72-2 Sheet No. 10 Side A 01/15/2018 10:23:44 , EP HE IMES . R : T G see also ’ ENT N.Y. T , OLLIDE . S and state- 40 ED C F 295, 297 (2004) 15 in ONGRESS C , prompted judges to Congress also passed 269–70 (2009). RIMINOLOGY 38 However, the Feeney 42 Koon YSTEM Let Judges Do Their Jobs S . L. & C OURTS AND C RIM UDICIAL J J. C HEN S ’ The Feeney Amendment and the Continuing Rise of . 1, 28–29 (2010) (describing organized opposi- , W , 94 The American Inquisition: Sentencing After the Federal EV EYH New York’s Federal Judges Protest Sentencing Procedures MERICA A few resigned. A G L. R 41 1420, 1466 (2008) (same). The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of OREST Over judicial opposition, ARDNER F L.J. 37 G ONTROL OF , Letter from William Rehnquist, Chief Justice, U.S. Supreme , United States v. Kirsch, 287 F. Supp. 2d 1005, 1007 (D. Minn. AKE , John S. Martin, Jr., Opinion, This additional encroachment upon judicial author- , Stephanos Bibas, ALE ., Ian Urbina, Y C W 39 note 37, at 269–70 (2009) (describing judicial backlash against the Dec. 8, 2003), http://www.nytimes.com/2003/12/08/nyregion/new- ( HARLES , 45 , 117 C See, e.g. See, e.g See, e.g. See, e.g. See, e.g. supra IMES , 42. 41. 37. 40. 39. 38. EYH TRUGGLE FOR the so-called Feeney Amendment in 2003, which imposed new re- cordkeeping and reporting requirements on stricted trial courts trial and courts’ re- discretion Guidelines. to downwardly depart from the ments to the press. ity, undoing much that was gained fight in back, including through their judicial opinions, Feeney Amendment). ranted intimidation of the judiciary”); United States v. Kim, No. 03 Cr. 413, 2003 WL 22391190, at *5–6 (S.D.N.Y. Oct. 20, 2003) (Patterson, J.) (criticizing Feeney Amendment, including hasty process resulting in Dyck, 287 F. Supp. 2d 1016, 1022 (D.N.D. 2003) (Webb, J.) (judge dissenting from its passage); United States v. his own sentencing opinion “as an appeal for a restoration of individualized tencing”); sen- United States v. Thurston, 286 F. Supp. 2d 70, 71 n.4 (Harrington, J.) (district court (D. judge recused himself rather Mass. than impose required 2003) sentence on remand noting that the Feeney Amendment’s provisions for de novo appellate review of sentencing “renders the trial judge standing superfluous . the . fact . that notwith- the trial judge based on knowledge acquired from presiding at two complex criminal jury trials”). possesses deep understanding of the case 2003) (Magnuson, J.) (predicting that Feeney ment “will have a Amendment’s devastating effect on our system of justice” because of its “unwar- reporting require- G (June 24, 2003), their-jobs.html [https://perma.cc/D65U-N4GH] http://www.nytimes.com/2003/06/24/opinion/let-judges-do- (Op-Ed by U.S. John S. District Martin, the former Judge U.S. Attorney for the Southern announcing District of that New he York, was retiring in protest of the lines and mandatory the Sentencing Feeney Amendment). Guide- N.Y. T S 345 (2003); Ricardo J. Bascuas, Guidelines 2018]the Guidelines. THE “NEW” DISTRICT COURT ACTIVISM 197 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 11 15-JAN-18 9:53 Walker, Jr. and twenty six other federal Amendment judges and protests registered calling by other federal for judges in New repeal York); of the Feeney york-s-federal-judges-protest-sentencing-procedures.html york-s-federal-judges-protest-sentencing-procedures.html [https://perma.cc/ MF6A-ZFBF] (discussing letter signed by Second Circuit Chief Judge John M. tion to Feeney Amendment from, among others, individual federal judges and the Judicial Conference). Court, to Patrick Leahy, Senator, U.S. Cong. (Apr. 4, 2003), (describing impact of Feeney Amendment to the 2003 PROTECT Congress); Kate bill Stith, passed by Discretion Prosecutorial Power to Plea Bargain 39707-nys_72-2 Sheet No. 10 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 10 39707-nys_72-2 39707-nys_72-2 Sheet No. 10 Side B 01/15/2018 10:23:44 cris de cris Booker Similar 46 In a 2011 opin- effectively undid 44 and suggested that 43 Booker 2. Mass Incarceration United States v. Whigham, 754 F. Supp. 2d 239, 242–43 , as well as the wisdom of the now-advisory sen- see also Booker . at 203; Id Id. Senior Judge Jack Weinstein in the Eastern District of New appear in the opinions or in-court statements of numerous Examples of the “new” activist critiques of sentencing policy Perhaps paradoxically, since the Supreme Court in 45 43. United States v. Haynes, 557 F. Supp. 2d 200, 207 (D. Mass. 2008) (Gert- 44. 45. United States v. Bannister, 786 F. Supp. 2d 46. 617, 689 (E.D.N.Y. 2011) ion, “[c]ourts may no longer ignore the possibility that mass incarceration of nonviolent drug offenders has disrupted families and com- munities . . . without necessarily deterring the next young generation men of from committing the same crimes.” American experiment in mass incarceration” abound. Long before Harvard Judge calling upon Rakoff judges to made speak tion,” other judges were up identifying his the problem. For example, in a about “mass 2015 incarcera- speech 2008 opinion, at now-former Judge Nancy Gertner in wrote Massachusetts about the “significant downside to what has been called the ner, J.). 198 Amendment persisted until NYU 2005, most when ANNUAL of SURVEY its provisions OF when only. AMERICAN it rendered LAW the Guidelines advisory [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 12 15-JAN-18 9:53 York warned that grave costs mandatory not only on minimum the punished but on sentencing the depends.” justice criminal of system our which upon moral credibility “impose[s] (D. Mass. 2010) (Gertner, J.) (criticizing career offender and crack cocaine guidelines as “wholly inconsistent § to 3553(a)”). the purposes of sentencing under 18 (Weinstein, J.). U.S.C. coeur other judges, including Judge warned Gleeson, that who we in need a to lengths 2012 make of the opinion prison “smart, terms we bold impose” and choices” “the categories about of de- “the does not do more to create alternatives to incarceration, and why it makes it so difficult for former offenders to reintegrate into society. discussed policy, sentencing of critiques activist “new” the are These further below. handed trial judges a major victory, judicial advocacy about sentenc- about advocacy judicial victory, major a judges trial handed ing policy has taken on a new urgency. Its subjects include the propriety of statutory mandatory minimum sentences, which were left untouched by tencing guidelines. Judges also have started to ask why the system 39707-nys_72-2 Sheet No. 10 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 10 39707-nys_72-2 39707-nys_72-2 Sheet No. 11 Side A 01/15/2018 10:23:44 47 Many 48 49 9, 10 (2011) D 2 AG B (May 18, 2016), http:// REEN G EWS N , 15 AILY D , N.Y. Brandeis Brief Myths Brooklyn perv who sexually exploited underage boys, including United States v. Dokmeci, No. 13-CR-00455, 2016 WL 915185, WL 2016 13-CR-00455, No. Dokmeci, v. States United 50 see also John Marzulli, David E. Bernstein, See See Other judges have more recently joined the call for reform— 49. 48. United States v. Feauto, 146 F. Supp. 3d 1022, 1024–25 (N.D. Iowa 2015) 47. United States v. Dossie, 851 F. Supp. 2d 478, 484 (E.D.N.Y. 2012) 50. such as Judge Nicholas Garaufis of the Eastern District of New York, New of District Eastern the of Garaufis Nicholas Judge as such and not just talk about—our over-incarceration problem.”); United States v. Vas- of these statements appear in the context of sentencing wherein they constitute dicta. But the discussions of decisions sentencing policy surrounding them are often lengthy anyway, incorporating extensive social science and Brandeis academic brief. literature in the style of a (Bennett, J.). at *1 (E.D.N.Y. Mar. 9, 2016) (Gleeson, J.) (“As a nation, we need to deal with— quez, No. 09-CR-259, 2010 WL 1257359, at *2 (E.D.N.Y. Mar. 30, 2010) (Gleeson, J.). sion doesn’t want to do justice, they should all just resign.” who during a 2016 sentencing called the Guidelines “incredibly excessive and irrational,” and stated that “if the Sentencing Commis- (Gleeson, J.); 2018] fendants we routinely” put in prison who do not need to be there. In a 2015 opinion, Judge Mark Bennett of Iowa THE wrote that “NEW” “in most DISTRICT COURT ACTIVISMof the over 1,000 congressionally-mandated mandatory minimum sentences that I have imposed over the past twenty-two years, I have stated on the record that they were unjust and too harsh.” 199 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 13 15-JAN-18 9:53 one with brain cancer, sentenced to 15 years (a so-called “Brandeis Brief,” named for the brief filed by then attorney Louis cause “I would government’s not agreement”); have United been States 499–500 free (N.D. v. Ohio to 2012) Marshall, (Zouhary, select J.) 870 conclusion: (“[T]his it is statutorily bound to impose a sentence of 60 Court months, and such does so, F. arrives at a Supp. a frustrating sentence 2d while at 489, without the same time the emphasizing its Shull, strong 793 F. Supp. disagreement.”); 2d 1048, 1050 United (S.D. Ohio 2011) States (Marbley, J.) (“The v. history of unfairness in crack cocaine sentencing is well known, but the inaccuracies based it on and was the injustices it caused make its retelling all the more necessary.”). www.nydailynews.com/new-york/nyc-crime/rooklyn-perv-sexually-exploited-underage-boys-15-years-article-1.2641566 [https://perma.cc/7W6V-RLMY] statements (reporting by Judge Nicholas Garaufis of the Eastern District of New York at sentencing in United States v. Naim, 13-CR-660 (E.D.N.Y. May. 19, J.)). For 2015) additional voices (Garaufis, outside of New York, see, for example, United States v. McDade, 121 F. Supp. 3d 26, 29–31 court continued (D.D.C. to 2014) believe that (Friedman, the J.) sentence (noting it was that just,” required to urging impose was defendant “un- to seek court’s efforts executive to bring case to the attention clemency, of the Pardon Attorney at the Depart- and recounting history ment of of Justice); United States v. Childs, 2013) (Graham, J.) (accepting 976 plea agreement in child pornography F. case stipulat- Supp. 2d 981, 982 ing to (S.D. a below-Guidelines Ohio sentence, but noting that the case was “disturbing” be- 39707-nys_72-2 Sheet No. 11 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 11 39707-nys_72-2 39707-nys_72-2 Sheet No. 11 Side B 01/15/2018 10:23:44 . see OC S TLAN- . 173, A see also UTGERS EV , Other R FOR R 52 Y ’ J. , 66 OL granted in- AUL (June 6, 2015), . P 54 E D OST A “Holocaust in Slow . L. & P . P . , 7 ARV ASH (Oct. 24, 2012), https:// H W , , 4 ATION N Did the Man I Sentenced to 18 Years , Acknowledging that “[f]ederal that Acknowledging (May 6, 2014), https://www.amazon 51 IVE Juror Sentiment on Just Punishment: Do the and opinion pieces, L One Judge Makes the Case for Judgment 53 Why Mandatory Minimum Sentences On Drug Ar- OST P UFF The Judge Who Says He’s Part of the Gravest Injustice in or made public speeches. For example, in H Against His Better Judgment Better His Against How Mandatory Minimums Forced Me to Send More Than 55 (June 3, 2017), http://www.cnn.com/2017/06/02/polit- (Jan. 23, 2016), https://www.nytimes.com/2016/01/24/ A Slow Motion Lynching? The War on Drugs and Mass Incarcera- IMES OLITICS , Judge James S. Gwin, , Stefan R. Underhill, Opinion, , Matthew Van Meter, , Eli Saslow, Eli , N.Y. T , ? . CNN P See, e.g. See, e.g. See, See, e.g. See, e.g. , . 873 (2014); Mark Osler & Judge Mark W. Bennett, The The judicial campaign against mass incarceration has also 117 (2014). 53. 52. Mark W. Bennett, 51. 55. 54. EV . Mark K. Bennett, (Feb. 25, 2016), http://www.theatlantic.com/politics/archive/2016/02/one- UST J TIC judges also have written policy judges have a longstanding culture of not speaking out on issues of public concern,” he explained that he was “breaking with this tradition” because the “daily grist” of unjust mandatory minimum sentencing for non-violent drug offenders “compels [him] to.” Federal Sentencing Guidelines Reflect Community Values? terviews to journalists, made made extensive use of extrajudicial fora. For example, since at least 2012, Judge Bennett has written extensively about the need to form sentencing policy re- in a variety of publications and has granted journalists. to interviews numerous that “80% of the mandatory sentences he hands down are unjust”). 1,000 Nonviolent Drug Offenders to Federal Prison L. R Brandeis in Muller v. Oregon, 208 U.S. 412 (1908), is “heavy on social science data and policy analysis, light on legal citation”). [https://perma.cc/PS4J- ics/mandatory-minimum-sentencing-sessions/index.html FEDM] (video interview with Judge Bennett in his courtroom in which he stated 200 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 14 15-JAN-18 9:53 opinion/sunday/did-i-sentence-a-murderer-or-a-cooperative-witness.html [https:// opinion/sunday/did-i-sentence-a-murderer-or-a-cooperative-witness.html for Court District U.S. the of Underhill Judge District (U.S. perma.cc/TKA3-K4A5] the District of Connecticut, calling for “a mechanism for judges to reevaluate the sentences they’ve imposed”). judge-makes-the-case-for-judgment/463380 [https://perma.cc/94FB-G5EC] District Western (infor Court District U.S. the of Coughenour John Judge with terview Motion?” America’s Mass Incarceration and the Role of Discretion www.thenation.com/article/how-mandatory-minimums-forced-me-send-more- 1000-nonviolent-drug-offenders-federal-pri/ [https://perma.cc/G2AB-RTSY]; also tion, Doing Kimbrough Justice, and a Response to Two Third Circuit Judges .com/Mandatory-Minimum-Sentences-Arrests-Unfair/dp/B00SZ1DRUG/ ref=cm_cr_arp_d_pdt_img_top?ie=UTF8 [https://perma.cc/YY7Y-MHP2]; Mallory Simon & Sara Sidner, America http://www.washingtonpost.com/sf/national/2015/06/06/against-his-better- judgment/?utm_term=.2e3c6c5fa2f6 [https://perma.cc/8NA8-L4AE] (interview with Judge Mark Bennett of Iowa); rests Are “Unfair and Racist,” 176 (2010) (Judge Gwin, of the U.S. District Ohio, Court and for a the Clinton Northern appointee, District calling of for the Sentencing larly survey Commission jurors to on their regu- views of appropriate punishment). Deserve It 39707-nys_72-2 Sheet No. 11 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 11 39707-nys_72-2 39707-nys_72-2 Sheet No. 12 Side A 01/15/2018 10:23:44 , ex- and 58 60 And as And Mandatory 56 note 2. supra Mandatory Minimums article published , 110th Cong. 43 (2007) Outside Box, Federal Judges note 3. (Sept. 24, 2012), https://thecrimere- . For Lesser Crimes, Rethinking Life Behind EP supra R , RIME (Mar. 1, 2013), http://www.nytimes.com/2013/ 2013), 1, (Mar. C New York Review of Books , IMES Federal Judges Urges U.S. to ‘Jettison the Madness of Mass Incar- N.Y. T N.Y. , Mass Incarceration Judges also have appeared before Congress (June 23, 2016), https://www.nytimes.com/2016/06/24/nyre- Judge Regrets Harsh Human Toll of Mandatory Minimum Sentences 59 (Dec. 16, 2014), http://www.npr.org/2014/12/16/370991710/ (Dec. 11, 2012), https://mobile.nytimes.com/2012/12/12/sci- , Testimony of Judge Irene Keeley, Chair of the Judicial Confer- IMES IMES ADIO Rakoff, Speech at Harvard Law Sch. Conference, Alan Feuer, Rakoff, (citing commentary to Canon Four of the Code of Conduct for U.S. ˜ naloza, . R N.Y. T See Id. See, e.g. See See and judges’ “special duty to be heard on this issue,” , UB 57 N.Y. T Straight Talk From a Judge 57. 58. 56. 60. 59. , . P , 111th Cong. 42 (2009) (statement of Chief Judge Julie E. Carnes, U.S. District AT noted earlier, Judge Rakoff spoke in 2015 at Harvard about Law School “the mass incarceration of people in day,” the United States to- pressing similar views in a the same year. judge-regrets-harsh-human-toll-of-mandatory-minimum-sentences [https://perma mandatory that states he which in Gleeson Judge with (interview .cc/2MFM-9NQ9] minimums are “wrong” as a policy matter); Mosi Secret, Path Free a Addicts Offer gion/federal-judge-urges-us-to-jettison-the-madness-of-mass-incarceration .html?mcubz=0 [https://perma.cc/NVE7-B7HQ]. of Washington, a Reagan appointee, about sentencing policy); Carrie Johnson & Marisa Pe N 2018] 2016, Senior Judge Raymond Dearie of the Eastern District of New York gave THE “NEW” a DISTRICT COURT speech ACTIVISM to a group wondered about of the “love New affair in York this country lawyers with lengthy incar- in which nation.” civilized a as embarrassment great our to ceration, he 201 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 15 15-JAN-18 9:53 ence/mandatory-prison-sentences-face-growing-skepticism.html ence/mandatory-prison-sentences-face-growing-skepticism.html [https://perma .cc/7XMK-4YLX] (interview with Judge “[m]andatory sentences breed Roger injustice”). Vinson of Florida stating that port.org/2012/09/24/2012-09-straight-talk-from-a-judge port.org/2012/09/24/2012-09-straight-talk-from-a-judge [https://perma.cc/ 7GN9-H598 ] (interview with Judge Block on a range of subjects, including overly harsh sentencing policy); John Tierney, Bars and Unintended Consequences: Hearing on H.R. 2934, H.R. 834, and H.R. 1466 Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judici- ary of Conference Judicial the of behalf on Georgia, of District Northern the for Court the United States) (arguing that waste mandatory and system judicial the in confidence public undermine that sentences tional penalties produce unfair and irra- public resources by incarcerating offenders for longer than necessary); Minimum Sentencing Laws—The Issues: Hearing Before the Subcomm. on ism, Crime, and Terror- Homeland Security of the H. Comm. on the Judiciary (statement of Judge Paul G. Cassell on behalf of the Judicial Conference of the ence Committee on Criminal Criminalization Law, Task Force of 2014 (July Before 11, 2014) (setting forth H. position of Judi- Comm. cial on Conference the against mandatory Judiciary minimum Over- sentencing); ceration’ 03/02/nyregion/us-judges-offer-addicts-a-way-to-avoid-prison.html 03/02/nyregion/us-judges-offer-addicts-a-way-to-avoid-prison.html [https://perma .cc/P6XZ-AAQ8] (interviews with federal district court Judge Stefan Underhill of Connecticut and Judge Ricardo S. Martinez of the ton); Western District of Washing- Judges). 39707-nys_72-2 Sheet No. 12 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 12 39707-nys_72-2 39707-nys_72-2 Sheet No. 12 Side B 01/15/2018 10:23:44 , RO- P OURTS C TATE ONFERENCE OF ONFERENCE OF S C C 17 (Mar. 2009), EPORT OF THE R TR FOR TATES UDICIAL UDICIAL J [https://perma.cc/ J S [https://perma.cc/8R7F- ’L C TATES S AT They generally steer the NITED , N 63 NITED U (2003) (surveying various types of U OTTMAN RENDS T 62 B. R ROCEEDINGS OF THE to urge those bodies to take correc- P 61 AVID Two Supreme Court Justices Say Criminal-Justice System ONFERENCE OF THE ODELS AND & D ONFERENCE OF THE C (Mar. 24, 2015), https://www.wsj.com/articles/two-su- : M C ASEY . J. 3. Alternatives to Incarceration T EPORT OF THE OURTS S M. C R 18 (Sept. 2006), http://www.uscourts.gov/sites/default/files/ UDICIAL Jess Bravin, UDICIAL C J J ALL cf. , Chief Judge Robert J. Conrad, Jr., U.S. W. Dist. N.C., testimony to W TATES TATES AMELA , P S S OLVING -S See, e.g. See See, e.g., NITED NITED Most intriguingly, “new” activist district court judges have 61. 63. 62. U U ROBLEM P THE CEEDINGS OF THE THE tive action. Much of this advocacy has taken place pices under the of aus- the Judicial Conference, which has mandatory minimum consistently sentences. opposed 2006-09.pdftreatment differential the (opposing [https://perma.cc/53UC-XRBR] of crack and powder cocaine in the Anti-Drug Abuse Act of 1986). individual toward drug treatment or other services and counseling. Successful completion of these programs usually will result in individual facing no prison time, and often emerging with no crimi- the create local diversionary programs and tion. These alternatives programs take to a variety of incarcera- forms, but typically they volve in- diverting an offender from the usual criminal justice process, either before that process starts or after a guilty plea has been entered but before a sentence is imposed. Some programs are available only to certain demonstrated history of drug addiction. classes of offenders, such as those with a pushed the limits of their supervisory and persuasive authority to minimum sentences can produce results contrary to the interests of Committee justice,” on the Criminal Law seeks an amendment to 18 clude stacking U.S.C. of § counts, which “compounds that 924(c) risk”); to pre- JX6F-9FVG] (“In light of the Conference’s long-standing position that mandatory United States); 202the Sentencing Commission NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 16 15-JAN-18 9:53 preme-court-justices-say-criminal-justice-system-isnt-working-1427197613 preme-court-justices-say-criminal-justice-system-isnt-working-1427197613 [https:// perma.cc/38M9-8PDD] (quoting testimony before House subcommittee tices Breyer and Kennedy harshly critical of incarceration rates, with Justice by Breyer Jus- calling mandatory minimum sentences a “terrible idea”). http://www.uscourts.gov/sites/default/files/2009-03.pdf Isn’t Working the U.S. Sentencing Commission, at sites/default/files/pdf/amendment-process/public-hearings-and-meetings/2009 4 (Feb. 11, 2009), 0210-11/Judge%20Robert%20Conrad%20021109.pdf https://www.ussc.gov/ written Guidelines the and punishments minimum mandatory (“Statutory GHTZ]) to implement them achieve the goals of uniformity at the cost of sometimes unjust sentences.”). specialized courts developed in the United States). 39707-nys_72-2 Sheet No. 12 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 12 39707-nys_72-2 39707-nys_72-2 Sheet No. 13 Side A 01/15/2018 10:23:44 , , OX . L. EWS RIM 13 Fig. L. F L. . (show- EPORT ON . C (Mar. 24, U.S. N Id , R M TATES A ARSON S New Program in NCARCERATION IN Federal Defendants ISPATCH , 53 I , & C ATIONAL -D NITED U OST ARDIN : A N P OUIS D. H D. ICTURE . L P T LTERNATIVES TO S Drug Violators Get a Chance to Change In recent years, they have A OURTS IN THE , AROLYN , 65 C , C (August 12, 2013), http://www.nadcp URRENT . The Drug Court Paradigm C OLVING ROFS (2015), https://img.nyed.uscourts.gov/files/ -S , E.D.N.Y. ARLOWE . P T ORK (Oct. 27, 2015), https://www.bostonglobe.com/ National Association of Drug Court Professionals Ap- Y C OURT Decarceration Courts: Possibilities and Perils of a Shifting B. M B. EW ROBLEM AINTING THE 1587, 1590 (2012) (noting the proliferation of special- LOBE . C RUG P note 55 (noting that federal judges had instituted special N (Nov. 9, 2013), http://www.masslive.com/news/index ., P IST . G D . L.J. N OUGLAS ’ OS THER NST D Jessica M. Eaglin, EO B supra SS I , O G U.S. D A In 2013, there were seven such programs among the L , Since 1989, numerous state court systems have estab- ’ ISTRICT OF (Oct. 17, 2015), http://www.usnews.com/news/us/articles/2015/ EPUBLICAN OURT . 66 64 AT , 100 D C EP R N R , See generally See generally See, e.g. RUG OURTS AND ASTERN D C L ORLD 65. 64. 66. 595, 603–07 (2016) (discussing structure of drug courts and their influence ’ . E AT RUG EV PRINGFIELD N R captured captured the imagination of “new” judicial activists in trict federal courts. dis- .org/DOJ [https://perma.cc/Y7HK-SH7B] (quoting District Judge Keith Starrett urging federal courts to implement drug courts); Robert Patrick, Federal Court Here Helps Defendants Avoid Prison lished lished such diversionary programs. on the creation of other problem-solving courts such as “[m]ental reen- health courts, truancy courts, homeless courts, community courts, violence domestic courts, try courts, and veterans’ courts”). & W D S 2018]nal record. THE “NEW” DISTRICT COURT ACTIVISM 203 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 17 15-JAN-18 9:53 metro/2015/10/26/court-offer-alternatives-prison-for-drug-defendants/cl3uElXy THE .ssf/2013/11/federal_judge_in_springfield_p.html .ssf/2013/11/federal_judge_in_springfield_p.html [https://perma.cc/7H3L- T2HK] (“Joining federal judges nationally, U.S. District Judge Michael A. Ponsor has launched a fledgling effort in this city to steer young, often drug-addicted defendants away from prison.”); plauds Justice Department Smart Expansion on Crime Initiative; Calls for Federal Drug Court ized state courts since the early 1990s and reaching approximately 3,000 by 2010). 10/17/federal-court-programs-aim-to-keep-defendants-out-of-prison [https://per ma.cc/4VGD-D6GQ] (discussing the rise of pretrial diversion programs in federal courts in the last five years); Milton J. Valencia, Lives, Avoid Prison 1 (June 2016), http://www.nadcp.org/sites/default/files/2014/Painting%20the% 20Current%20Picture%202016.pdf [https://perma.cc/N9HN-SRAQ]; local_rules/ATI.EDNY_.SecondReport.Aug2015.pdf local_rules/ATI.EDNY_.SecondReport.Aug2015.pdf [https://perma.cc/P4H9- 4RUT] (discussing programs created in the Eastern District of New York and cata- loging programs in federal courts throughout the United States); Stephanie Barry, Federal judge in Springfield pilots pre-sentence diversion program for drug defendants treatment programs for drug-addicted defendants in California, Connecticut, Illi- nois, New Hampshire, New York, South Carolina, Virginia, volving and about Washington, 400 in- defendants nationwide); Sudhin Thanawala, Get Chance to Avoid Prison, Turn Their Lives Around in New Court Programs 2016), http://www.stltoday.com/news/local/crime-and-courts/new-program-in- federal-court-here-helps-defendants-avoid-prison/article_df453143-ff85-5101-89a9- 3068694902fa.html [https://perma.cc/S3KH-DEZA] (describing SAIL, an alternative to incarceration program run by the District Court in the Eastern Missouri, District of which “is not problems”); Secret, limited to drug cases or people with substance-abuse ing Milestones in the Development of Drug Courts); Allegra Courts M. McLeod, and Other Problem-Solving Criminal Law 39707-nys_72-2 Sheet No. 13 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 13 39707-nys_72-2 39707-nys_72-2 Sheet No. 13 Side B 01/15/2018 10:23:44 U. , 69 72 Judges Seek Alterna- [https://perma.cc/ . __ (2017). EV Rachel E. Barkow & Mark William on over-incarceration, due in L. R 71 see also ARY As Judge Stefan Underhill of Con- (Nov. 27, 2009), http://www.austinchronicle 68 . & M note 66; Federal Trial Judges: Dealing with the Real World Instead of Jail, Judges Take More Hands-On Role With HRON ILLIAM C W i.e., sentencing those with drug addiction to United States v. Leitch, No. 11–CR–00039, 2013 WL supra , 2016 WL 915185, at *13 n.84 (detailing previous ask for 69 USTIN , 59 , WNPR (Aug. 5, 2014), http://wnpr.org/post/instead-jail- A , In many districts, the trial judges have been leaders see also Dokmeci 67 , 2016 WL 915185, at *2. , and presented that district’s program to judges from 355, 365 (2015) (noting Judge Gleeson’s leadership role); Secret, . 70 sources cited Jack B. Weinstein, at *3; EV Such an endorsement could promote the spread of the See Dokmeci Id. See See, e.g. 73 Designed to Fail: The President’s Deference to the Department of Justice in Advancing L. R In addition to participating in the creation of alternatives to note 55 (same). 67. United States v. Dokmeci, No. 13-CR-00455 (JG), 2016 WL 915185, at *3 68. 71. 69. Lucy Nalpathanchil, 72. 70. 73. IAMI M necticut, necticut, who championed the effort in Connecticut explained, “I had been a judge long enough that I had become the frustrated revolving door,” with prison, only to see them later re-offend because they did not receive not did they because re-offend later them see to only prison, treatment. Judge Gleeson led the effort in the New Eastern York District of .com/news/2009-11-27/921497/ [https://perma.cc/KZQ3-RJBB] (“At a meeting of the U.S. Sentencing Commission last week, Judge William K. that federal Sessions judges III are said interested in seeing more alternatives to incarceration included in federal sentencing guidelines.”). incarceration in their own districts, federal trial judges have lobbied have judges trial federal districts, own their in incarceration the Sentencing Commission to give official recognition to such programs. numerous other districts.numerous other in one of his final opinions that He wrote “the tide is just beginning to turn” part to a “grassroots movement in the federal courts.” (E.D.N.Y. Mar. 9, 2016) (Gleeson, J.). supra H17FjfNGE0JeUO/story.html [https://perma.cc/SK3A-BSVG] (describing RISE, a federal alternative to incarceration program Massachusetts). created by the District Court of 20494 federal districts; as of 2016, that number had more than tripled NYUto twenty-two. ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 18 15-JAN-18 9:53 programs to other districts and help judges throughout the federal system appreciate how the programs fit in to the overall sentencing regime. in setting up such programs. Osler, Criminal Justice Reform Addicts in Connecticut judges-take-more-hands-role-addicts-connecticut#stream/0 L78H-N8HC] (cleaned up). 753445, at *2 (E.D.N.Y. Feb. 28, 2013) (Gleeson, J.). Commission to authorize a downward departure for successful participation in judge-involved a intensive supervision program) (citing letter from the Hon. Gleeson, John U.S. Dist. Judge in the E. Dist. of N.Y., Chair, U.S. Sentencing Comm’n (May 21, 2014)); Jordan Smith, to Patti B. Saris, Chief Judge & tives to Incarceration 39707-nys_72-2 Sheet No. 13 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 13 39707-nys_72-2 39707-nys_72-2 Sheet No. 14 Side A 01/15/2018 10:23:44 : ” , 78 Pa- USTICE OLLAT- J Thus, 246–47 , , C 77 Padilla v. ECORD (2013). LINGELE R K The New Jim Crow NCARCERATION IN THE I RACTICE RIMINAL ECELIA ASS P C 76 . : M , & C ROW TERNAL OLICY AND C E OBERTS IM , P HE 1789, 1814–15 (2012). J R . AW EV EW , T : L And while the Supreme Court in ENNY N J 79 , The New Civil Death: Rethinking Punishment in the HE . L. R ACOBS A OVE , T L The Mythical Divide Between Collateral and Direct Conse- Previously relegated to the corridors of U. P B. J 75 ONVICTIONS (2010). C AMES J , 160 OLGATE LEXANDER C A 4. Collateral Consequences of Convictions . 670, 671–72 (2008) (explaining constitutional jurisprudence re- , Gabriel J. Chin, EV Jenny Roberts, ICHELLE ARGARET that defense counsel’s failure to advise a client of the de- Many people are familiar with some of their harshest mani- OLORBLINDNESS M See generally See, e.g. See National Inventory of the Collateral Consequences of Conviction See . L. R M 74 C ONSEQUENCES OF For decades, federal criminal law was officially blind to these In addition to excessive incarceration, the “new” judicial activ- INN 74. 76. 77. 75. 78. 79. 559 U.S. 356, 374 (2010). C ., https://niccc.csgjusticecenter.org [https://perma.cc/BF5J-73KL] (searcha- M TR GE OF they were considered irrelevant at sentencing, to the adequacy defense representation, of and to the voluntariness of a guilty plea. ERAL real-life consequences, deeming them “non-punishment.” ists have brought attention to the consequences of criminal convictions for the ability employment, housing, education, and otherwise participate fully in of previously convicted society. Most of these persons consequences are imposed by to state, not fed- obtain eral, law, but they apply equally to those federal court. convicted Laws imposing such restrictions of have existed for cen- offenses in turies. defense and immigration attorneys’ offices, these collateral consequences have emerged in recent years through popular books like Michelle Alexander’s into public consciousness Mass Incarceration in the Age of Colorblindness A That changed in 2010 when the Supreme Court held in Kentucky portation consequences of a conviction constituted constitutionally incompetent representation. C 2018] THE “NEW” DISTRICT COURT ACTIVISM 205 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 19 15-JAN-18 9:53 convictions). ble database of approximately 45,000 distinct collateral consequences of festations, e.g., precluding convicted felons who are United States citizens from voting, or providing grounds for deportation of non- citizens. Such laws have proliferated in the economic, educational, and social spheres as well, precluding crime from individuals being eligible for convicted a variety of of professional a licenses, ex- cluding them from housing and related benefits, and from educational opportunities. garding collateral consequences). (2015); Era of Mass Conviction quences of Criminal Convictions: Involuntary Commitment of “Sexually Violent Predators 93 39707-nys_72-2 Sheet No. 14 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 14 39707-nys_72-2 39707-nys_72-2 Sheet No. 14 Side B 01/15/2018 10:23:44 Lynn Adel- the Execu- 86 181 (2015) (call- . and the status see also EV 84 And in 2015 and They also explicitly 82 . L. R 85 —lower courts, espe- IS 80 W (June 17, 2011), http://www 81 Y ’ OL , 2015 L. & P Y FOR ’ , have held that other collateral conse- OC S opinions extensively survey the social sci- Booker Doe 83 . ). ); Doe v. United States, 168 F. Supp. 3d 427 (E.D.N.Y. 2016) cases, Judge Gleeson explored the role that federal ONSTITUTION Sentenced for Life: Considering the Collateral Consequences of Criminal , 110 F. Supp. 3d at 457 (“The seemingly automatic refusals by , United States v. Stewart, 590 F.3d 93, 141 (2d Cir. 2009) (af- , . C Doe I Doe II at 433. , 168 F. Supp. 3d at 429–30. Doe M A Doe v. United States, 110 F. Supp. 3d 448, 458 (E.D.N.Y. 2015) at 366. , Id. See See, e.g. See, e.g. Doe II See id. See Doe I Criminal Justice Reform: The Present Moment In the Like the campaign against mass incarceration, the “new” ac- took pains to distinguish deportation from other collateral 80. 83. 81. 82. 84. 85. 86. of various reform efforts around the country. cially in the wake of man, invite a broader conversation—among other judges, 2016, Judges Gleeson and Block of the Eastern District of New York devoted considerable space in their judicial opinions to the issue, starting with a pair of cases authored by Judge Gleeson captioned Doe v. United States example, starting at least in 2011, Judge Lynn Adelman of Wiscon- sin has, through panel discussions and writings, publicly called for the reexamination of collateral consequences. district judges could play in ameliorating collateral for consequences individuals convicted in their courts. Like many other “new” activist opinions, these ence literature on the effect of felony convictions tivist campaign against collateral consequences has For opinions. judicial of played pages the as well as statements extrajudicial out in 206dilla NYUconsequences—holding ANNUAL that SURVEY deportation is OF “uniquely “its of because consequence” collateral a or direct a either as classify AMERICAN difficult to LAWclose connection to [Vol. 72:187 the criminal process” quences may be considered at sentencing. \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 20 15-JAN-18 9:53 .acslaw.org/news/video/sentenced-for-life-considering-the-collateral-consequen ces-of-criminal-convictions [https://perma.cc/LDV8-BWW9] featuring (panel Judge Adelman discussing collateral consequences); discussion ing for widespread criminal justice reform, including to collateral consequences of conviction). firming trial court’s consideration of impact of conviction on defendant’s career as career defendant’s on conviction of impact of consideration court’s trial firming academic or translator). Convictions (Gleeson, J.) ( (Gleeson, J.) ( judges to expunge convictions when the inability to find employment is the ‘only’ ground for the application have undervalued the critical role employment plays in re-entry. They are also increasingly out of step with public opinion.”). 39707-nys_72-2 Sheet No. 14 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 14 39707-nys_72-2 39707-nys_72-2 Sheet No. 15 Side A 01/15/2018 10:23:44 In Doe 91 and 94 decision, finding that —about policies affect- Doe 89 92 , see, for example, United States v. infra and the public , discussed 88 case, Judge Gleeson tried to persuade the When the United States Attorney refused, a holding that precluded (as least in the Sec- Nesbeth 90 93 Doe Id. case, Judge Gleeson found the applicant’s hardship , 168 F. Supp. 3d at 446 n.41 (describing as “unfortunate[ ]” the , 168 F. Supp. 2d at 447 (attachment showing Certificate of Reha- legislators, , 110 F. Supp. 3d at 457 (Doe I’s case “highlights the need to take 87 at 445 (calling for congressional authorization of a “robust federal Doe , 110 F. Supp. 3d at 455. In granting the expungement, Judge Brief and Appendix for the United States at *7, Doe v. United States, See Doe II See id. See Doe I See Doe I See Doe II In the first The Second Circuit reversed the first and in dicta imploring the Department of Justice to use deferred prosecution 87. 88. 89. 90. 91. 92. 93. Doe v. United States, 833 F.3d 192, 94.196–98 (2d Cir. 2016). In addition to a certificate that he persuaded the Chief Probation Officer of the eral “certificate of rehabilitation,” modeled on similar to defendant the for easier it make to law, York New under available certificates demonstrate to future employers that she was a worthy candidate— Eastern District of New York to co-sign. the second insufficient to warrant expungement but nevertheless issued a fed- ing the re-entry into society of individuals with criminal convictions. United States Attorney to agree to the expungement of the defendant’s conviction. Judge Gleeson expunged it anyway on the grounds that it created an extraordinary hardship to her ability to obtain employment. Judge Gleeson did not have jurisdiction to consider the application for expungement, ond Circuit) district courts from entertaining any tions for expungement future or certificates of applica- rehabilitation. But the opinions have had a lasting effect anyway, even beyond their contri- bution to the overall policy debate. Other district court judges have started to discuss collateral consequences in their opinions, 2018]tive Branch, THE “NEW” DISTRICT COURT ACTIVISM 207 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 21 15-JAN-18 9:53 infrequency of pardons issued by the Executive branch). certification system” like that in effect in New York and several other states). a fresh look at policies that shut people out from the social, economic, and educational opportunities successfully.”). they desperately need in order to reenter society 833 F.3d 192 (2d Cir. 2016) (No. 15-1967), 2015 WL issued 5559948 (describing order by Judge expungement). Gleeson asking the government to consider consenting to “terminated from half a dozen jobs [as a home health aide] because of the record of her conviction.” Saena Tech Corp., 140 F. Supp. 3d 11, 42–47 (D.D.C. 2015) (Sullivan, Doe I J.) (citing agreements and other similar tools in individual prosecutions to allow individual defendants, like corporate defendants, a chance to avoid the deleterious collateral Gleeson cited among other considerations Doe’s representation that she had been bilitation issued, co-signed by the Chief Probation Officer for the District). 39707-nys_72-2 Sheet No. 15 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 15 39707-nys_72-2 39707-nys_72-2 Sheet No. 15 Side B 01/15/2018 10:23:44 For ex- 95 Written in the 99 Nesbeth did not at laws imposing and the status of 97 102 100 The judge then held that at 200 (quoting Loretta E. Lynch, 98 Id. United States v. Nesbeth. v. States United , asked the Probation Office and the par- Finally, it nudges numerous other actors 101 sua sponte 96 at 188. at 181–83. at 183. at 198 (“It is for Congress and the states’ legislatures to determine Doe v. United States, 833 F.3d at 199 (“The unfortunate consequences The opinion went on to quote at length a speech by then-Attorney at 194. Id. Id. Id. See Id. See id. Id. In May 2016, Senior District Judge Frederic Block of the East- 95. 96. 97. 188 F. Supp. 3d 179 (E.D.N.Y. 2016) 98. (Block, J.). 99. 100. 101. 102. ample, they noted providing federal that courts with Congress jurisdiction to tions expunge of might those, like Doe, who the “want and deserve to have their convic- crimi- do well nal to consider convictions rehabilitation.” expunged after a period of successful “new” activist style, the opinion traces the history and contemporary and history the traces opinion the style, activist “new” landscape of laws imposing collateral consequences, the effect practical of such laws on those subject to them, involve expungement, but instead could the take extent to collateral which consequences First, the judge, a into judge account at ties to sentencing. address the collateral consequences the defendant was likely to face due to her drug conviction. in the criminal justice system to take action—e.g.,take to system justice criminal the in legisla- for calling tors around the country to take a “hard look” collateral consequences; observing that defense counsel and prose- modern reform efforts. collateral consequences in consequences collateral ern District of New York took up Judge Gleeson’s campaign against these consequences, which included the inability to pursue a teach- ing career and accomplish the school principal, justified a defendant’s sentence of probation. goal of becoming a consequences of criminal convictions); Stephenson v. United States, 139 F. Supp. 3d 566, 572 (E.D.N.Y. 2015) (Dearie, J.) (in dicta branches of calling government to for ensure that action individuals by who are all finished serving three their sentences are given a second chance to make a life). 208two judges on the Second Circuit, in reversing Judge Gleeson’s or- NYUder, ANNUAL expressed sympathy for SURVEYthe issue he OFhad identified. AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 22 15-JAN-18 9:53 of Doe’s conviction compel us to offer a few additional observations.”). General Loretta Lynch calling for reforms of the laws that effectively turns “terms of incarceration into . . . a life sentence.” loretta-e-lynch-delivers-remarks-national-reentry-week-event [https://perma.cc/4R 7X-C9DY]). Attorney Gen., Dep’t of Justice, Remarks at National Reentry Week Event in Phila- delphia (Apr. 25, 2016), https://www.justice.gov/opa/speech/attorney-general- whether the plethora of post-sentence punishments imposed upon felons is than harm truly more country the do they whether at look hard a take to and warranted, 39707-nys_72-2 Sheet No. 15 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 15 39707-nys_72-2 39707-nys_72-2 Sheet No. 16 Side A 01/15/2018 10:23:44 . N ’ EV SS the , 2004 A 106 AR . L. R . B ARV 104 M Tradition- H A Berger v. United 105 , 94 and suggesting 103 Prosecutorial Neutrality r. 3.8 cmt. [1] ( [1] cmt. 3.8 r. ONDUCT decision, the Probation Department in C L ’ ROF Nesbeth P Decent Restraint of Prosecutorial Power ULES OF R ODEL M , Bruce A. Green & Fred C. Zacharias, , B. The Excesses of Prosecutorial Discretion at 197. Following the 837, 840 (2004) (“Discretion pervades every aspect of [prosecutors’] . Id. See, e.g. See, e.g. EV The second theme of the “new” judicial activism is the excesses , 104. 105. 103. 188 F. Supp. 3d at 196–97. (citing defense counsel’s duties to advocate 106. . L. R controversy, but of a sovereignty whose obligation to govern impartially is a in therefore, interest, whose and as all; at govern to obligation its as compelling criminal prosecution is not that it shall win a case, but that justice be done. As such, he is in a peculiar and very may He suffer. innocence or escape not shall guilt that is which of aim twofold definite sense the servant of the law, the prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. The United States Attorney is the representative not of an ordinary party to a IS availability of juries to serve as a check on prosecutorial charging ally, it has been justified by a variety of rationales, including prose- justice,” of “ministers and advocates both as roles dual cutors’ that the Court’s Probation Department should prepare a collateral consequences analysis in all future pre-sentence reports. tude that prosecutors enjoy in making charging and settlement decisions, and fundamental in to the American criminal justice system. performing other aspects of their work—is of prosecutorial discretion. Prosecutorial discretion—the wide lati- work.”); James Vorenberg, 295 U.S. 78, 88 (1935). tice,” imposed on federal prosecutors pursuant to 28 U.S.C. § 530B(a) (2012)). the Eastern District of New York has included a for collateral consequences all analysis defendants sentenced in Kelly, that Chief district. Probation Telephone Interview Officer, author). with E.D.N.Y., Eileen (Jan. 10, 2017) (notes on file W with 1983) (“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”). As the Supreme Court famously States stated in good. Hopefully, this opinion will be of value those who to are committed the to serving bench the and ends of bar, justice.”). and to all the client’s cause, consult with the client on client important informed decisions, of and keep significant the developments, as under Rule well 3.8 of New as York’s Rules of prosecutors’ Professional Conduct as obligations a “minister of jus- 2018] cutors may be derelict in their professional duties if they do not pay greater attention to THE “NEW” collateral DISTRICT COURT consequences ACTIVISM when advising clients and the court in future sentencing proceedings; 209 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 23 15-JAN-18 9:53 1521, 1536–39 (1981) (discussing range of prosecutorial discretion). 39707-nys_72-2 Sheet No. 16 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 16 39707-nys_72-2 39707-nys_72-2 Sheet No. 16 Side B 01/15/2018 10:23:44 R R . EV 110 109 . L. . MERI- ICH A . L. R M A V , 100 , , 101 OWER OF THE P HE : T USTICE J note 105, at 1562 (discussing a variety note 17, at 130. RBITRARY supra Moreover, by overcharging a case, a , A 108 at 1849 & n.237 (gathering the “unrelenting” supra , The Corporate Criminal as Scapegoat 1. Overcharging The Pathological Politics of Criminal Law Criminal of Politics Pathological The Especially since legislators embraced AVIS 107 J. D ABRANES see also id. NGELA especially charges carrying (or increasing) a & C A , United States v. Burciaga-Duarte, No. CR 14-0592, 2015 WL 111 180–83 (2007) (calling for greater oversight of prosecutors by bar by prosecutors of oversight 180–83greater for (calling (2007) TITH S Brandon Garrett, William J. Stuntz, J. William See, e.g. See See, e.g., See See ROSECUTOR A number of judges have raised concerns about prosecutorial In the last decade, one hears echoes of these critiques in the There have long been calls for greater regulation and/or over- 111. 107. 109. 110. 108. 505, 537 (2001) (explaining how legislators have given prosecutors a menu of . P EV R criticisms by members of Congress and the press “failures of to prosecute top executives and officers” the for actions relating to the global Department of Justice’s financial crisis). CAN prosecutor can coerce a guilty plea to at least a lesser offense. mandatory mandatory sentencing regimes, critics have argued that the system concentrates too much power in the hands of prosecutors, who are effectively able to dictate the sentence through charging decisions. that a defendant receives overcharging, work of “new” activist judges. These judges have not challenged the basic premise of prosecutorial must be discretion—i.e., given a that wide berth prosecutors to do suggested their that prosecutors jobs are in effectively—but some cases have abusing their authority. As set forth below, these concerns have been raised most commonly with respect to prosecutorial charging decisions (both over and under-charging) and prosecutors’ exploitation of the criminal discovery rules that can keep defendants in the dark about critical evidence. overlapping charges which support prosecutors’ “ability to induce a plea”). of mechanisms that discretion). could be leveraged to limit prosecutors’ unchecked 1789, 1792–93 (2015); Since the financial crisis, critics also have focused on prosecutors’ failures to aggressively pursue white collar and corporate crime. 210the of oversight other or judicial of impracticality the and decisions, NYU investigatory ANNUALand other aspects of SURVEY prosecutors’ work. OF AMERICAN LAWsight [Vol. 72:187 of prosecutors. \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 24 15-JAN-18 9:53 disciplinary authorities); Vorenberg, 3862946, at *3 (D.N.M. June 9, 2015) (Browning, J.) (raising concern about DOJ prosecution of marijuana distribution in New Mexico, while “turning a blind eye” to the same crime in other states that have legalized marijuana); United States v. Washington, 131 F. Supp. 3d 1007, 1018 (E.D. Cal. 2015) (Mueller, J.) (“The government’s initial targeting of the defendants without any individualized suspicion Cal. (C.D. 788 772, 3d Supp. F. 3 Hudson, v. States United pause.”); court this gives 39707-nys_72-2 Sheet No. 16 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 16 39707-nys_72-2 39707-nys_72-2 Sheet No. 17 Side A 01/15/2018 10:23:44 United toward calling atten- 113 rev’d & remanded sub nom.,. sub remanded & rev’d to exploit these punitive statutory , 851 F. Supp. 2d at 489 (Gleeson, J.) (“The only Dossie choices note 24. , United States v. Marshall, 125 F. Supp. 3d 652, 659–60 (N.D. It can thus sometimes be difficult to disentangle the , United States v. Dossie, 851 F. Supp. 2d 478, 479 (E.D.N.Y. 2012) (E.D.N.Y. 479 478, 2d Supp. F. 851 Dossie, v. States United , 112 114 See, e.g. See, See supra See, e.g. Federal prosecutors’ use of the prior felony information provi- 112. 113. 114. tion to prosecutors’ schemes. sions set forth in Section 851 of Title 21 has particularly drawn the prosecutor required it.”); United 1257359, at States *5 (E.D.N.Y. Mar. 30, v. 2010) (Gleeson, J.) (noting Vasquez, that there was “but No. one” reason for the sentence imposed—”I was forced by a law that should not have 09-CR-259, 2010 WL been invoked to impose a five-year prison term”); 8:08CR50, 2009 WL United 35166, at *10 States (D. Neb. v. Jan. 5, 2009) Gellatly, (Bataillon, J.) (imposing No. required five year sentence for receipt of child pornography, but noting that “[i]f not constrained by the government’s charging decision, clined to sentence this defendant to a shorter term of imprisonment that would be the court would be in- more in line with the sentences possession”). impose[d] on similar defendants convicted of reason for the five-year sentence imposed on Dossie is that the law invoked by the 2014) (Wright, II, J.) (dismissing drug and robbery indictment where charges were operation), sting reserve house” “stash on based 2018] mandatory minimum sentence. Often, the judges’ prosecutors’ disapproval charging of THE decisions “NEW” DISTRICT is COURT ACTIVISM bound up with the taste for the legislative judgments reflected in the statutory schemes judges’ dis- themselves. frustra- judges’ the from conduct prosecutors’ the at distress judges’ tion with Congress. 211 Nevertheless, “new” activism away from simply there voicing the need for corrective legis a distinct shift islative in action the (a sentiment that judges have regard to mandatory long minimum sentences), expressed with \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 25 15-JAN-18 9:53 (Bataillon, J.) (questioning government’s decision to charge defendant in federal rather than state court, given his minor role in drug conspiracy and vastly different sentencing consequences). (Gleeson, J.) (discussing distortive effects of drug cases, mandatory but calling on the Attorney minimum General to use his powers sentences to remedy those in effects, even absent new legislation). Ohio 2015) (Zouhary, J.) (noting, in cases involving receipt of child pornography, that the court “would have preferred a charging decision that mandatory did minimum” not and include that a government’s charging decision “may have an been ‘irresponsible’ use of the Government’s broad (internal citation omitted); discretion to select charges”) States v. Dunlap, 593 F. App’x. 619 (9th Cir. 2014); United 857 States v. F. Henderson, Supp. 2d 191, 212 (D. sense of Mass. outrage 2012) out of (Woodlock, proportion J.) to the (suggesting circumstances of that has the apparently driven the “[a] case misconduct to be pursued as here a felony”); United States v. Cromi- tie, 781 F. Supp. 2d 211, 227 (S.D.N.Y. 2011) (McMahon, J.) (noting the “serious questions that this [terrorism sting] case raises about how the Government is United constraints”); budgetary and terror both of age de- an in fisc public the ploying States v. Bass, No. 8:04CR384, 2007 WL 2226007, at *3 (D. Neb. Aug. 1, 2007) 39707-nys_72-2 Sheet No. 17 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 17 39707-nys_72-2 39707-nys_72-2 Sheet No. 17 Side B 01/15/2018 10:23:44 123 Once 115 The prior fel- and contain no contain and 118 119 and to “express their 124 provides a good example. In a lengthy If the defendant has two prior qualifying A defendant who otherwise would face a 120 117 116 And in a final section of the opinion captioned “The 122 at 882. at 893, 910–932 apps. A–E. at 903. To that end, Judge Bennett included in the opinion the Id. Id. Id. Id. 121 By at least 2013, federal district court judges started to voice 116. § 841(b)(1)(A). 117. § 841(b)(1)(B). 118. § 841(b)(1)(A). 119. Act of Oct. 27, 1970, Pub. L. No. 120.91-513, 84 Stat. 1236. 960 F. Supp. 2d 881 (N.D. Iowa 2013) 121. (Bennett, J.). 122. 123. 124. 115. 21 U.S.C. § 851 (2012). that document is filed, a defendant mandatory minimum who sentence of ten otherwise years and a would maximum of life face a for a drug offense instead faces a mandatory years’ minimum imprisonment. of twenty ony information provisions were enacted in 1970, in enacted were provisions information ony restrictions on when prosecutors may invoke them. their displeasure with how prosecutors were exercising their discretion regarding Section 851. Judge Mark Bennett’s 2013 decision in United States v. Young convictions, a prosecutor can file triggering two a mandatory life term of imprisonment. prior felony informations, United States Attorney’s Office for the Northern District of Iowa for Iowa of District Northern the for Office Attorney’s States United what he called “the stunningly arbitrary application by the Depart- ment of Justice (DOJ) of [Section] 851 drug sentencing enhancements.” opinion filed as the court’s statement of reasons for imposing sentence, Judge Bennett berated the Department of Justice and the Role of the Judiciary in Judge Attempting Bennett to called Correct upon the his fellow Problem,” judges accountable for to their hold use prosecutors of Section 851, 212ire of “new” activist judges. Those NYU provisions give prosecutors power ANNUAL the SURVEY to OF sentences AMERICAN increase for LAW defendants the prosecuted for document—known drug as mandatory a prior felony information—alleging that the crimes by [Vol. 72:187 minimum filing a defendant and previously was convicted of a qualifying felony. maximum \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 26 15-JAN-18 9:53 mandatory minimum of five years’ imprisonment and a maximum of forty years instead faces a minimum of ten years and a maximum of life imprisonment. conclusions of his original research on DOJ’s informations, use using of prior data felony provided (at his request) States by Sentencing the Commission, summarized United in various charts and appendices. 39707-nys_72-2 Sheet No. 17 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 17 39707-nys_72-2 39707-nys_72-2 Sheet No. 18 Side A 01/15/2018 10:23:44 129 Still, opin- 131 Kupa All of this was 126 , also decrying DOJ’s , most of the and the other for provid- decision, Judge Gleeson is- 127 Young —a policy he thought he had about the issue, drawing a con- 132 Young 125 Like 130 Thus, the statutory mandatory mini- United States v. Kupa 128 opinion was a shot across the bow to the Young , 960 F. Supp. 2d at 883. , 960 F. Supp. 2d at 903 (“I believe we [judges] have an equal at 434 (recounting Judge Gleeson’s “belief that the United States at 432. at 434. at 908. Young Id. Id. See id. Id. Young , it was all dicta—theall was it , did ultimately enhancement 851 Section 133 Shortly on the heels of the 127. 18 U.S.C. § 3553(f) (2012). This safety valve is available to defendants 128. § 3553(e). 129. 130. 976 F. Supp. 2d 417 (E.D.N.Y. 2013) (Gleeson, 131. J.). 132. 133. 125. 126. ing “substantial assistance” to the government in the investigation or prosecution of others. persuaded the United States Attorney’s drop. Office in his district to nection nection to the problem of mass incarceration. mation, did not bind Judge Bennett’s hands in sentencing. mum sentence, before or after the filing of the prior felony infor- Judge Gleeson used his statement of reasons express for his concerns the about sentence DOJ’s to strategic use of Section hancements 851 to coerce en- guilty pleas dicta, because the prior felony information case had no effect at in the hand; mandatory minimum sentence pursuant to two other statutory pro- the defendant visions—one known as the safety qualified valve for escape from the who do not have a significant criminal record who disclose information about their about information disclose who record criminal significant a have not do who offense to the government. Attorney had agreed to refrain from using prior felony informations to coerce right—even duty—to call out the DOJ on its application of the new national policy [reflected in a 2013 memo from Attorney General Holder], its secrecy in applying § 851 enhancements, and the completely arbitrary way in which it could continue to apply these devastating enhancements, which add to tion’s mass incarceration the problems, in burdens the absence of of new transparency our accompa- Na- nying the new policy.”). Nevertheless, the Department of Justice. 2018] continuing concern to the DOJ” THE “NEW” DISTRICT COURT ACTIVISM 213 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 27 15-JAN-18 9:53 ion is not devoted to the facts of the case or the pertinent law. stead, In- it offers a history of mandatory minimum sentencing statutes and DOJ charging policy, a survey of contemporary charging practice, and a strongly-worded Young message of disapproval. not And increase as the defendant’s in sentence—in government this case withdrew because it the pursuant to a plea agreement. sued a lengthy opinion in policy regarding Section 851. 39707-nys_72-2 Sheet No. 18 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 18 39707-nys_72-2 39707-nys_72-2 Sheet No. 18 Side B 01/15/2018 10:23:44 In 135 That 141 136 United States In another 134 note 62, at 17, (“In supra (Mar. 2009), If there are two or more stacked 138 Like Section 851 enhancements, prose- 137 ONFERENCE C 139 UDICIAL J , in which he referred to prosecutors’ use of stacked 140 at 311–12. See, e.g. Id. In 2014, Judge Gleeson wrote a lengthy opinion in In a similar vein, judges have started to question prosecutors’ Although Although less fulsome in their critiques, other judges during 136. 134. Ross v. United States, No. 6:03-cv-729, at *9–10 (M.D. Fla. filed July 11, 135. United States v. Jones, No. CR 08-0887-2, 2009 WL 2912535, at *7 (N.D. 137. 18 U.S.C. § 924(c)(1)(A) (2012). 138. § 924(c)(1)(D)(ii). 139. § 924(c)(1)(C)(i). 140. 68 F. Supp. 3d 310 (E.D.N.Y. 2014) 141. (Gleeson, J.). provision provides for a mandatory minimum sentence for carrying or possessing a gun in furtherance of a crime of violence offense—of or five, drug seven, or ten years, depending which the on gun was the used. extent to Section 924(c) counts, the person must be sentenced to at least 25 years’ imprisonment. that the government “exercised its amounts to a discretion due process violation in and prosecutorial abuse.” a manner that case, Judge Marilyn Hall Patel of the Northern District of California struck a prior felony information filed against a defendant, finding sentence, including the sentence imposed for the underlying drug offense or crime of violence. cutors have total discretion over whether to charge a Section 924(c) Section a charge to whether over discretion total have cutors count, and how many to charge, Sec- each for sentence The possessed. or used gun each for charged since a different count can tion 924(c) count of conviction must run consecutive to every other be v. Holloway exploitation of the consecutive, mandatory minimum sentences authorized by Title 18, United States Code, Section 924(c). the past decade also have criticized federal prosecutors’ use of Sec- tion 851. For example, in 2013, Judge Anne Conway of the Middle District of Florida expressed a prosecutor’s decision similar to file concern, a prior characterizing felony information a as tive,” “vindic- and warning that Section 851 enhancements should used not to be force minor participants to accept a plea. pleas after the office’s longstanding practice of doing so was brought to her attention in 2010”). 2013), ECF No. 40 (Conway, J.). Cal. Sept. 9, 2009) (Patel, J.). 214 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 28 15-JAN-18 9:53 Section 924(c) counts as a “misuse of prosecutorial power.” light of the sentences can produce results contrary to Conference’s the interests of justice,” the Conference long-standing sought an position amendment to 18 U.S.C. § 924(c) to preclude that stacking of counts, which mandatory “compounds that risk”). minimum 39707-nys_72-2 Sheet No. 18 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 18 39707-nys_72-2 39707-nys_72-2 Sheet No. 19 Side A 01/15/2018 10:23:44 Hollo- Hollo- SEC v Ci- and 144 143 he publicly embarrassed SEC lawyers , 752 F.3d 285 (2d Cir. 2014). 145 Not surprisingly, applications for “ , 2. Undercharging 142 SEC v. Bank of America Corp. , United States v. Rivera, Nos. 83-00096-01-CR & 83-00138-02-CR vacated and remanded SEC v. Bank of America Corp., No. 09 Civ. 6829, 2009 WL 2842940, at 2842940, WL 2009 6829, Civ. 09 No. Corp., America of Bank v. SEC at 311 (“In the spirit of fairness—and with the hope of inspiring Id. See See, e.g. The “new” district court activism also can be found at the other the at found be can also activism court district “new” The 142. 144. 143. 145. SEC v. Citigroup Glob. Mkts., Inc., 827 F. Supp. 2d 328 (S.D.N.Y. 2011) ” relief are now working their way through United States Attor- to charge. For example, in a variety of fora, Judge Rakoff of the relief so that court could impose a sentence “that better serves the interests of tigroup Global Markets Inc. by refusing to approve consent judgments with banks, with considerable commentary. end of the criminal justice spectrum, in the white-collar area, where decision the regarding policies prosecutors’ questioned have judges not Southern District of New York has criticized the DOJ and the Secur- ities and Exchange Commission (SEC) for their response to the financial crisis of 2007–08officials. Most notably, in two cases brought by the SEC in the and wake failure to of the financial crisis, charge any high-level 2018]that case, Judge Gleeson vacated two Section 924(c) convictions of a defendant THE “NEW” who DISTRICT COURT had ACTIVISM already served nearly prison sentence and had no legal grounds for seeking correction of 20 years of a 57-year his sentence. Ultimately, the court acted with the consent of both parties. However, as the opinion makes clear, the prosecutor’s consent was wrangled by 215 Judge Gleeson, vehicle who to publicize used the the maneuver and opinion celebrate the as United States a Attorney for relenting. \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 29 15-JAN-18 9:53 neys’ Offices and courts throughout the country. way 2014) (granting joint motion of the parties to reduce mandatory sentence of life imprisonment, imposed pursuant to Government’s filing U.S.C. § of 851, a to a 25-year notice term). under 21 other United States Attorneys to show similar wisdom and courage—I write to ap- plaud the admirable use of prosecutorial power in this case.”). (E.D. Okla. Sept. 15, 2015) (granting defendant’s motion to vacate and resentence after government agreed to support the motion); United States 815-01, v. at *23–27 Ezell, (E.D. No. Pa. Aug. 02- 18, 2015), ECF No. 253 (asking the government to consent to such 4941820, at relief); *16 (E.D. Pa. Aug. 19, United 2015) (asking government to States consent to v. way Trader, No. 04-680-06, justice”); 2015 United WL States v. Martinez–Blanco, No. 06–cr–396 (N.D. Ga. Mar. 31, *2 (S.D.N.Y. Aug. 25, 2009) (Rakoff, J.) (discussing Court’s request for additional submissions and briefing); SEC v. Bank of America Corp., 653 F. Supp. 2d 507, 508 (S.D.N.Y. 2009) (Rakoff, J.) (rejecting consent judgment even after reviewing additional submissions). (Rakoff, J.), 39707-nys_72-2 Sheet No. 19 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 19 39707-nys_72-2 39707-nys_72-2 Sheet No. 19 Side B 01/15/2018 10:23:44 The 148 New York Review of of future settle- at 295. 150 , 827 F. Supp. 2d at 333 Id. New York Review of Books note 4 (including digital image Citigroup but only after the parties sub- supra 147 In both cases, the judge repeat- 146 Rakoff, Jed Rakoff and the Lonely Fight for Wall Street Jus- See , 653 F. Supp. 2d at 509 (noting that the shareholders published in 2014 in the 154 , 827 F. Supp. 2d at 330–35. 152 , 752 F.3d at 294 (2d Cir. 2014). The Second Circuit held that , Sasha Abramsky, On remand, Judge Rakoff approved the decree but He also gave numerous interviews to journalists explor- (these included the allocation of resources within DOJ, a shift toward (June 18, 2014), https://www.thenation.com/article/jed-rakoff-and- 149 153 See Bank of America See Citigroup Citigroup Id. Id. See, e.g. Judge Rakoff followed up his in-court critiques with a ATION Judge Judge Rakoff was disturbed that the proposed consent decrees 151 issue in which it appeared. N 146. 147. Even while approving the final consent decree, Judge Rakoff called it 148. 149. 151. 152. The Article received top billing on the cover of the 153. 150. SEC v. Citigroup Glob. Mkts. Inc., 34 F. Supp. 3d 379, 380 (S.D.N.Y. 154. , agreement, concluding his written opinion with SEC for a abdicating its rebuke statutory duty to to flush the out the truth. SEC filed an interlocutory appeal with the Second reversed. Circuit, which stantially stantially modified the agreements to, among other things, give the court a role in approving the outside experts retained to implementation. audit In the other, its Judge Rakoff refused to approve the edly required the parties to submit additional evidentiary materials and briefing to address his concerns. In one case, Judge Rakoff finally approved the consent decree, ments, including those “enforced by the judiciary’s contempt powers.” in which he pointed to “weaknesses in that contributed to the lack our of prosecutions of senior corporate prosecutorial ex- system” ecutives. did not require an admission of wrongdoing or the payment of pen- of payment the or wrongdoing of admission an require not did alties by individual wrongdoers. will bear the brunt of the penalty assessment); 216 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 30 15-JAN-18 9:53 warned that the consequence would be “no of meaningful oversight whatsoever” the Second Circuit’s decision ing similar topics. headline article (noting that the consent agreement did not require an admission of wrongdoing). “half-baked justice at best,” because it company imposed that “very were modest” unlikely measures to change on future the conduct. Corp., Nos. 09 Civ. 6829, 10 Civ. SEC 0215, 2010 WL 624581, at *5–6 v. (S.D.N.Y. Feb. 22, Bank of America 2010) (Rakoff, J.). 2014) (Rakoff, J.). Books of cover). the district court had applied an erroneous legal standard and that it was not necessary for “the SEC to establish party” before the a court ‘truth’ could approve of a consent decree. the allegations against a settling corporate rather than individual prosecutions, reliance on corporate internal investigations, and prosecutors’ preference for easier cases). tice 39707-nys_72-2 Sheet No. 19 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 19 39707-nys_72-2 39707-nys_72-2 Sheet No. 20 Side A 01/15/2018 10:23:44 . ASH Judge Court EPART- (Apr. , THE W EUTERS , R (Oct. 1, D , IMES , BLOOM- USTICE J N.Y. T A.B.A. J. , , (2017) (referenc- HE In a substantial : T 155 , (Jan. 22, 2013), http:/ LUB RIMINALS C BNA C OLLAR C LOOMBERG HICKENSHIT B C , HITE HE W , T Judge Balks at SEC’s Settlement with Citigroup ISINGER ROSECUTE E P ESSE J Orthofix’s Settlement of Medicare Probe Rejected by Judge Judge Rejects Plea Deal on Guidant Heart Device AILURE TO F Judge Refuses to Accept WakeMed Settlement with Federal Prosecutors TS U.S. judge tells CFTC he won’t ‘rubber stamp’ Deutsche Bank deal I see generally Judge Judge Rakoff may be the most prominent voice expressing fed- (Aug. 17, 2010), http://www.washingtonpost.com/wp-dyn/content/article/ . 155. For additional examples not discussed in the text, see, for example, Nate OST P BERG NEWS (Sept. 6, 2012) (criticizing “corporate criminal criminal settlement conduct because like it a civil treated case,” penalties and limited for the ability corporate to misconduct impose when tied.”); Zachary “the A. court’s Goldfarb, hands ought not to be MENT AND number of recent cases, other judges have criticized the DOJ for including explanation for why only two executives ing); Barry were Meier, charged with wrongdo- 2010/08/16/AR2010081604807.html [https://perma.cc/A9S4-LLT6]) (describing demand by United States District Judge Ellen S. Huvelle of the District of Co- lumbia for more information before approving SEC settlement with Citigroup, eral trial courts’ concern about DOJ and SEC under-enforcement in the white-collar context, but he is not alone. (Sept. 23, 2016), http://www.reuters.com/article/us-deutsche-bank-cftc-idUSKCN William Judge before action (describing ] [https://perma.cc/B3YK-TA9Q 11T1VT Pauley of the Southern District of New York); SEC v. Hohol, No. 14-C-41, 2014 WL 461217, at *2 (E.D. Wis. Feb. 5, 2014) (Randa, J.) (requiring additional tion informa- to permit court to determine whether settlement was “fair, quate, and reasonable, in the ade- public interest”); SEC v. CR Intrinsic Inv’rs, LLC, 1:12-cv-08466, at *16–17 (S.D.N.Y. Apr. “whether the regulatory and judicial practices 16, which have governed to date fail 2013), to ECF reflect what new realities demand to adequately protect the public interest”); No. 33 (Marrero, Rejects SEC Settlement in Alleged Ponzi Scam J.) (questioning 2018] THE “NEW” DISTRICT COURT ACTIVISMlonely-fight-wall-street-justice/ [https://perma.cc/5PJ2-3Z6E]; Terry Carter, 217 Jed Rakoff’s Stance on the SEC Deals Draws Fire, Praise—and Change \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 31 15-JAN-18 9:53 .cc/T6EB-2YCN] (Judge John Kane of the District of Colorado); Joseph Neff, Anne Blythe & NEWS & OBSERVER (Jan. 17, 2013)) (quoting United 5:12-cr-00398 States (E.D.N.C. v. WakeMed, Dec No. 19, 2012) “‘slap (Boyle, on the J.)) hand’ for (criticizing a ‘too settlement big Inc., to No. 1:12-cr-10169 as (D. fail Mass. Jun company’”); 07, 2012) (Young, a J.) as United quoted in States Jef Feeley v. Orthofix, & Janelle Lawrence, /www.bna.com/court-rejects-sec-settlement-in-alleged-ponzi-scam /www.bna.com/court-rejects-sec-settlement-in-alleged-ponzi-scam [https://perma 27, 2010), http://www.nytimes.com/2010/04/28/health/28device.html [https:// perma.cc/S4H5-Y4XN] (describing decision by United States District Judge Dono- van W. Frank of the District of Minnesota, rejecting plea agreement between the Department of Justice and the Guidant Corporation that would have required defendant corporation to plead guilty to two misdemeanors fine, on grounds that and its provisions were “not pay in the best interest $265 of justice and do million not serve the public’s interest because they do not adequately history address and Guidant’s the criminal conduct at issue”) 2013), http://www.abajournal.com/magazine/article/judge_jed_rakoffs_stance_ on_the_sec_deals_draws_fire_praiseand_change [https://perma.cc/6CHB- WYNR]; ing extensive interviews with Judge Department of Rakoff Justice in responding about to the financial the crisis). failures of the SEC and Raymond, 39707-nys_72-2 Sheet No. 20 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 20 39707-nys_72-2 39707-nys_72-2 Sheet No. 20 Side B 01/15/2018 10:23:44 156 , a DPA. The par- 158 at 737. The Speedy Trial Act Acknowledging the lim- Id. 162 United States v. HSBC Bank at *6 (discussing situations in which id. , 818 F.3d 733 (D.C. Cir. 2016). Judge Richard Leon of the District 161 , explored various bases for judicial review United States v. HSBC Bank USA, N.A., 863 F.3d 125, See , 2013 WL 3306161, at *5 (“By placing a criminal matter , 2013 WL 3306161, at *2 (concluding that the court did not sua sponte vacated and remanded 160 (noting that, at status conference, the court suggested it had author- This apparently represented the first time that a district Id. HSBC Bank See HSBC Bank But along the way, he outlined a novel theory of a district 157 United States v. Fokker Id. 159 In 156. United States v. HSBC Bank USA, 157. N.A., No. 12–CR–763, 2013 WL 158. United States v. Saena Tech Corp., 140 F. Supp. 3d 11, 25 (D.D.C. 2015). 159. 160. 162. United States v. Fokker Servs. B.V., 818 F.3d 733, 740 (D.C. Cir. 2016). 161. United States v. Fokker Servs. B.V., 79 F. Supp. 3d 160, 165 (D.D.C. full authority he initially thought DPA. he did, and he approved the ties ultimately persuaded Judge Gleeson that he did not have the of Columbia went further. He refused Dutch aerospace company suspected of evading to United States sanc- approve a DPA with tions against Iran and other nations. This marked the first time a that any federal court had denied a joint request to exclude time under the Speedy Trial Act pursuant to a DPA. 3306161, at *1 (E.D.N.Y. July 1, 2013) (Gleeson, J.). 218defendants; individual white-collar and corporate with lax too being NYUin ANNUAL some SURVEY of them, OF one boundaries AMERICANof can their authority to feel review LAW prosecutorial charging the and judges settlement straining decisions. For example, in against the [Vol. 72:187 Judge Gleeson \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 32 15-JAN-18 9:53 court judge had not “automatically approve[d]” court’s inherent supervisory power to review DPAs to a certain limited extent. of the substance of a proposed (DPA). deferred prosecution agreement ity to accept or reject a 11(c)(1)(A) and DPA U.S. Sentencing pursuant Guideline § to Federal 6B1.2). Rule of Criminal Procedure have authority under the Federal Rules of Criminal Procedure or the Sentencing Guidelines to substantively review the DPA). on the docket of a federal court, the parties have subjected their DPA to the legitimate exercise of that court’s authority.”); As the D.C. Circuit explained, the “interplay between the operation of a DPA and the running of time limitations under the Speedy Trial Act,” a DPA “involves the formal initiation of criminal charges,” thus triggering the “Speedy Trial Act’s time limits for the commencement of a criminal trial.” provisions or implementation of a DPA might “so transgress[ ] the bounds of law- fulness or propriety as to warrant judicial intervention to protect the the integrity Court”). The of Second Circuit later held that the district court lacked such pervisory su- authority to monitor implementation of a DPA absent showing of impropriety. a particularized 2015) (Leon, J.), allows “a court to suspend the running of the time within which trial to commence for a any period during DPA.” which the government defers prosecution under a 135 (2d Cir. 2017). 39707-nys_72-2 Sheet No. 20 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 20 39707-nys_72-2 39707-nys_72-2 Sheet No. 21 Side A 01/15/2018 10:23:44 164 IG TO B Bunch of ONVICTING OO C T and (2011). Judge Leon never- (2014) D.C. District Court 163 166 RONG , 170 W O G ORPORATIONS C to brief the position that the court Federal Criminal Discovery Reform: A Legislative 167 ROSECUTIONS P Upon a defendant’s request, the prosecu- 1533, 1536 (2010) (“The scope of discovery in crimi- . 639, 642 (2013); Daniel S. Medwed, Brady’s 3. Criminal Discovery . 171 EV OMPROMISE WITH EV , 818 F.3d at 738. C L. R , 79 F. Supp. 3d at 165–66. L. R EE HERE CRIMINAL , Bruce A. Green, at 14. The case also provided an opportunity for Judge Sul- United States v. Saena Tech Corp ERCER . & L : W 169 M at 167. The court appointed as amicus curiae Professor Brandon Garrett of 165 ROSECUTORS ASH although he required additional reporting on their imple- P Id. See id. See, e.g. Fokker Servs. Id. See Fokker Servs. Id. W , 64 168 OW The rules governing criminal discovery are another focus of And in NNOCENT , 67 168. 140 F. Supp. 3d at 13. 169. 170. 171. 163. 164. 165. 166. 140 F. Supp. 3d 11, 19 (D.D.C. 2015) 167. (Sullivan, J.). I : H AIL THE had broad authority to assess the substantive DPA. Judge Sullivan reasonableness ultimately rejected that view of and approved the a DPAs, tion must disclose: the defendant’s statements and prior criminal theless theless held that the gravity of [the defendant’s] conduct in DPA a post-9/11 world” and con- was “grossly disproportionate stituted an to inappropriate “exercise the of prosecutorial discretion.” Judge Emmet Sullivan also was troubled by a set of proposed DPAs there- He him. before process the of nature non-adversarial the and fore appointed amicus curiae the “new” district court activism. As commentators have for many observed years, discovery in federal criminal cases is far more limited than in civil cases. J this case.” livan to express his dismay that federal individual prosecutors criminal defendants did the full not array of offer disposition options regularly utilized for corporate defendants. 2018]ited nature of the court’s supervisory power, THE “NEW” DISTRICT COURT ACTIVISMThe government immediately appealed his decision to the D.C. Cir- cuit, which reversed, holding that the trial 219 court had no authority under the Speedy Trial Act to noting that it disapprove had “no occasion the to disagree settlement—while(or agree) with [Judge Leon’s] concerns about the government’s charging decisions in \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 33 15-JAN-18 9:53 mentation. Approach nal cases is generally (and bizarrely, given the stakes) narrower than cases.”). that of civil Flaws the University of Virginia School of Law, author of books including 39707-nys_72-2 Sheet No. 21 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 21 39707-nys_72-2 39707-nys_72-2 Sheet No. 21 Side B 01/15/2018 10:23:44 182 Upon 174 1, 12 (2015). . EV Importantly, the . L. R 176 and the results of 173 Courts deem evidence OLUM C 180 or if the prosecution’s failure to 177 Brady, 115 181 in sufficient time for it to be utilized and information that would be signifi- information. 179 178 Timing 16(a)(1)(A), (B), (D). Giglio . P. or material) material) RIM R. 15(a)(1) (authorizing depositions of witnesses, upon order of 16(a)(1)(E). 16(a)(1)(F). Brady Giglio . R. C R. R. R. 16(a)(1)(G). Brady United States v. Bagley, 473 U.S. 667, 682 (1985). Miriam H. Baer, 18 U.S.C. § 3500(a) (2012) (providing that, in any criminal prosecu- documents or other tangible items taken from the defen- ED F Id. See id. See Id. See See Id. 172 However, the government need not disclose its witness list, 175 The Supreme Court has long held that the government must 172. 175. 176. 177. 174. 181. 182. Kyles v. Whitley, 514 U.S. 419, 434 (1995). 178. Brady v. Maryland, 373 U.S. 83, 87 (1963). 179. Giglio v. United States, 405 U.S. 150, 15455 (1972). 180. 173. that the outcome of the trial, “material,” if there is a reasonable likelihood that it would affect request, prosecutors also must disclose a summary of the testimony from any expert witnesses whom the prosecution intends to call at trial. disclose it “undermines confidence in the outcome of the trial.” rules do not say when required disclosures must be made. Pursuant to Title 18, United States Code Section 3500 (known as the “Jencks statements prior any defense the to disclose must prosecutors Act”), by the witnesses whom the government their calls direct examination at is over. trial by the time examinations examinations or scientific tests of evidence material to the defense or that the government intends to offer in its case-in-chief. disclose exculpatory information that is “material” to the (known as defense cant in impeaching the credibility of (known the as government’s witnesses by the defense at trial. Prosecutors, however, get to determine what constitutes The Supreme Court has held that criminal defendants do not have a statutory or constitutional right to discovery before entering a 220record; NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 34 15-JAN-18 9:53 court, “in order to preserve testimony for trial” in “exceptional circumstances”). dant dant that are material to preparing the defense, or that the government intends to use in its case-in-chief; and witness depositions are extremely rare. “shall be the subject of subpoena [sic] discovery, or inspection until has testified on direct examination in the trial of the case”). For said decades, judges in witness some districts have ordered prosecutors to turn advance of over trial cases witness where there statements is no well danger to in witnesses. tion, no statement or report by government witnesses or prospective witnesses 39707-nys_72-2 Sheet No. 21 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 21 39707-nys_72-2 39707-nys_72-2 Sheet No. 22 Side A 01/15/2018 10:23:44 , , In RIMI- 189 See, e.g. 187 . L. & C RIM J. C , 107 Prosecutorial Accountability many never receive discovery there has been a notable shift material, but has not so held. 184 186 , Brady violations. Until recently, judges were (2016). Brady . 1091, 1104 (2014) (“[T]he federal disclosures are . 51 Federal Judge Files Complaint Against Prosecutor in Boston EV EV Discovery and Darkness: The Information Deficit in Criminal material before guilty plea). The Supreme Court has left Structuring Pre-Plea Criminal Discovery Bruce Green & Ellen Yaroshefsky, L. R 185 . L. R Giglio AME Thus, of the vast majority of criminal defendants who D ROOK 183 B United States v. Ruiz, 536 U.S. 622, 628–32 (2002) (finding no consti- Adam Liptak, In re Auerhahn, No. 09-10206-RWZ-WGY-GAO, 2011 WL 4352350, at Missouri v. Frye, 566 U.S. 133, 143 (2012) (noting that “[n]inety- Ion Meyn, at 52. (July 3, 2007), http://www.nytimes.com/2007/07/03/washington/ See See generally Id. See See See See OTRE He also referred the matter for bar disciplinary action. N 1, 9–12 (2017) (reviewing defendant’s lack of legal right to insist upon , 79 IMES That is not the case anymore. Now, judges are more likely to This discussion provides the background for an emerging 188 Prosecutorial Accountability 2.0 183. 186. 187. 188. 189. 184. 185. , 92 a 2009 case, he chastised a prosecutor for discovery violations and NOLOGY before doing so. misconduct, especially concerned with willful, rather than careless, misconduct. They generally gave prosecutors the benefit which of of the the doubt two had in occurred determining and within prosecutorial trusted offices to internal punish rogue mechanisms “bad apples.” in judicial rhetoric and behavior regarding prosecutorial discovery discovery violations that was too mild and inappropriately kept secret. define misconduct as including negligent as well as willful failures, are more likely to see tional, and have problems become less “hands off” in as regulating prosecutors. systemic rather than For example, in 2007, Senior Judge Mark Wolf of the District Court aberra- for Massachusetts wrote directly to then-Attorney General Alberto Gonzalez to express his concerns that the DOJ’s Office sional of Responsibility Profes- had imposed a sanction on a prosecutor for sense among many judges that prosecutors extent, abused the tremendous have, discretion this regime affords them. to a significant As Ellen Yaroshefsky and Bruce Green demonstrate in a recent article, N.Y. T 2018] guilty plea. plead guilty rather than go to trial, THE “NEW” DISTRICT COURT ACTIVISM 221 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 35 15-JAN-18 9:53 predominantly oriented toward trial preparation, despite trials’ rare occurrence.”). rare trials’ despite preparation, trial toward oriented predominantly 2.0 03justice.html [https://perma.cc/XD5E-NR2Q]. *2, *17 (D. Mass. Sept. 15, 2011) (recounting Judge Wolf’s role in initiating Bar Disputes most pre-plea discovery). seven percent of federal convictions and ninety-four percent of state are the convictions result of guilty pleas”). tutional right to open the door to the possibility that a defendant could have a constitutional right to pre-plea disclosure of exculpatory Daniel S. McConkie, 39707-nys_72-2 Sheet No. 22 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 22 39707-nys_72-2 39707-nys_72-2 Sheet No. 22 Side B 01/15/2018 10:23:44 . RIM IMES . C United EV 305, 305 See the con- N.Y. T . R , 191 NN THICS E . L.J. A EGAL EO G . J. L 196 EO , 44 G , 29 For Shame: The Public Humiliation of Pros- note 186, at 55–56 nn.21–22 (summariz- supra Criminal Law 2.0 and dismissals. Judge Says Abestos Case Can Proceed 195 Lara Bazelon, Bazelon, Lara violations” that only judges could address. cf. Brady and referral for professional discipline to sanction new trials, United States v. Welton, No. CR 09-00153, 2009 WL 2390848, at 190 , Kirk Johnson, , United States v. Grace, No. CR-05-07, 2009 WL 1160401 (D. in addition to more conventional remedies like jury , United States v. Dvorin, 817 F.3d 438 (5th Cir. 2016) (district , Transcript of Motions Hearing, United States v. Annappareddy , United States v. Burns, No. 6:13-cr-00022, 2016 WL 3910273, at 192 issued an order to show cause by prosecutor should not be sanc- , http://www.nytimes.com/2009/04/28/us/28grace.html [https:/ 194 193 United States v. Jones, 620 F. Supp. 2d 163, 167 (D. Mass. 2009). Green & Yaroshefsky, see also See See, e.g. See, e.g. See, e.g. See, e.g. See, e.g. See sua sponte iii, xxxv–vi (2015) (discussing benefits of publicly “[n]aming names” when Other district judges around the country have similarly be- . . 27, 2009) 190. 191. 195. 194. 192. 196. 193. PR ROC P tempt power, /perma.cc/LN9V-DU7Y]; come more active and creative, and have used shaming, prosecutors fessional conduct had not been proven by clear and convincing evidence). (A 222 arranged a remedial discovery training program for all prosecutors NYUin ANNUALthe district. SURVEY OF AMERICAN LAW [Vol. 72:187 instructions, counsel’s disciplinary action, and ultimately concluding that the allegations of pro- \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 36 15-JAN-18 9:53 Mont. Apr. 28, 2009) (Molloy, J.) (instructing jury to disregard testimony of ernment witness in light of government’s gov- failure to disclose impeachment material concerning the witness). *12 (C.D. Cal. Aug. 1, 2009) (Morrow, J.) (naming prosecutor involved in witness coaching and referring his conduct to United States Attorney and DOJ Office Professional of Responsibility to “determine whether any ethical or were committed legal . violations . . that warrant further discipline”). prosecutors engage in misconduct). In 2013, Judge Circuit memorably declared in a dissenting opinion that the nation Alex was experienc- Kozinski of the Ninth ing an “epidemic of States v. Olsen, 737 F.3d 625, 626 (9th denial of Cir. rehearing 2013) en banc). (Kozinski, J., dissenting from (2016) (discussing shaming practices employed by the Ninth Circuit Court of Ap- peals judges); Hon. Alex Kozinski, *8 (W.D. Va. July 14, 2016) (Moon, J.); United States v. Hector, No. CR 04-00860, 2008 WL 2025069, at *22 (C.D. Cal. May 8, 2008) (Pregerson, trial in light of numerous disclosure violations, J.) and noting that the “Government’s (ordering new credibility in this case has been compromised”). tioned for failing to disclose impeachment material and permitting witness to testify falsely regarding promises made to him and held evidentiary hearing); United States v. Shaygan, 661 F. Supp. 2d 1289, 1292–93 (S.D. quiring Fla. government to pay 2009) $600,000 of (Gold, the defendant’s legal J.) fees for violating (re- the Hyde Amendment); United States v. Jones, 609 sanctions why cause show to affidavits file to prosecutors (ordering J.) (Wolf, 2009) F. Supp. 2d 113, 131 (D. Mass. should not be imposed on material). the government for failure to disclose exculpatory ing cases); court ecutors by Judges to Correct Wrongful Convictions et al., 1:13-CR-374 (D. Md. Sept. 1, 2016) (Russell III, J.) (dismissing fraud charges 39707-nys_72-2 Sheet No. 22 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 22 39707-nys_72-2 39707-nys_72-2 Sheet No. 23 Side A 01/15/2018 10:23:44 or 197 United States cf. , Standing Order Standing , Revised Criminal See, e.g. See, In re Best Practices for Elec- Standing Order for Discovery In re In re [https://perma.cc/6XLH-A2QV]; violations and presentation of false testimony); United testimony); false of presentation and violations regarding criminal discovery, a number that ap- Brady 198 , S.D. Ala. L.R. 16; E.D. Cal. Crim L.R. 440; N.D. Cal. Crim. L.R. 16-1, See, e.g. Although Although much of this activity is memorialized in judicial opin- 197. A recent search of a local rule database revealed thirty-two such local 198.orders. standing such nine revealed research My standing orders .id.uscourts.gov/Content_Fetcher/index.cfml/Criminal_Procedural_Order_1553 .pdf?Content_ID=1553 [https://perma.cc/GR8C-LCD5]; General Order of covery and Scheduling (D. Kan. June 12, 2012); Dis- Procedure Order, Gen. Order No. 242 (D. Idaho Mar. 1, 2010), http://www States v. Chapman, 524 F.3d 1073, 1088 (9th Cir. dismissal 2008) of charges because of (upholding prosecutors’ discovery violations); trial court’s preme Court or the federal Courts of Appeals. Approximately forty- one of the ninety-four federal district courts have local rules ions ions and has occurred in the context of discrete cases, one most of interesting the aspects of the “new” district court activism in this area over the past decade has come in the form of judges exploring intra-judicial mechanisms to address these issues ex ante. For example, numerous trial judges have participated in the creation of local discovery rules or standing orders on discovery, many of which are far more demanding of prosecutors than are the Federal Rules of Criminal Procedure or the constitutional law decisions of the Su- and Inspection and Fixing Motion Cut-Off Date in Criminal Cases, Admin. Order No. 03-AO-027 (E.D. Mich. Sept. 30, 2003), https://www.mied.uscourts.gov/PDF- FIles/03-AO-027.pdf [https://perma.cc/A8JZ-B4TG]; Standing Order Regarding Discovery in Criminal Cases, Admin. 2006), Order http://www.miwd.uscourts.gov/sites/miwd/files/Administrative%20Order No. 06-085 (W.D. %2006-085.pdf Mich. [https://perma.cc/EX4W-NXP6]; Aug. 28, tronic Discovery of Documentary Materials in Criminal Cases General Order No. Standing Order on Discovery, L. Cr. R. App. 145 (D. Conn. Dec. 1, 2009), http:// www.ctd.uscourts.gov/sites/default/files/local_rules/Revised%20Local%20Rules %20%2011-15-2012.pdf [https://perma.cc/ES6P-ZY2S]; based on prosecutors’ on based 2018] THE “NEW” DISTRICT COURT ACTIVISM 223 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 37 15-JAN-18 9:53 on Criminal Discovery, Cr. Misc. No. 534 (M.D. Ala. .almd.uscourts.gov/download/file/fid/87 Feb. 4, 1999), https://www v. Stein 495 F. Supp. 2d 390, 427 (S.D.N.Y. 2007) (Kaplan, J.) ment against several (dismissing former executives at indict- the accounting firm KPMG after finding Fifth defendants’ violated opinion, the in named judge the whom prosecutors, that and Sixth Amendment right to counsel by pressuring KPMG to ment discontinue of pay- defendants’ legal fees). rules. 16.2; D. Haw. L.R. 16.1, 17.1; C.D. Ill. L.R. 16.1; N.D. Ill. L.R. 16.1; N.D. Md. L.R. 17.1.1; D. Mass. L.R. 116.1, 116.2, 116.6, 116.7, 116.8; Mont. L.R. D. Cr. Minn. 16.1, L.R. 16.3, 16.5; 12.1(a); D. D. Neb. L.R. 16.1; D. Nev. 16.1, L.R. 16.2; 16-1; D.N.H. D.N.M. L.R. L.R. 16.1, 16.2; N.D.N.Y. L.R. Cr. L.R. Pa. W.D. 16.1; L.R. Pa. E.D. 16.1; L.R. Okla. W.D. V; App. 16.1, L.R. Okla. E.D. P. 14.1; E.D.N.C. L.R. 16.1; 16; M.D. Tenn. L.R. 16.01; W.D. Tex. R. 16, 15-B(b)(3); D. Vt. L.R. 16; E.D. Wash. L.R. 16; W.D. Wash. L.R. 16; N.D. W. 16.05, Va. 16.06; S.D. L.R. W. Cr. Va. L.R. P. Cr. P. 16.01, 16.1; 16.02, E.D. Wis. 16.03, Cr. R. 16.04, 16. 17-1; N.D. Fla. L.R. 26.2; S.D. Fla. L.R. 88.10; N.D. Ga. L.R. 16.1; S.D. Ga. L.R. 16.1, 39707-nys_72-2 Sheet No. 23 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 23 39707-nys_72-2 39707-nys_72-2 Sheet No. 23 Side B 01/15/2018 10:23:44 8 , & For HELIA TATES ASES EDERAL UDICIAL S ARSH 199 4 (2004) C F . J nn. 60–61 & S ATERIAL IN ED They also material). NITED M E. M 200 ., F OF THE U OLICIES RIMINAL OOPER Brady P C 16 H ENNIFER ARYLAND AND ULE , 138, 147–48 , J R . M AURAL L OOPER ET AL RDERS OOPER ATERIAL IN THE RACTICES IN See H Criminal Trial Scheduling and , O DE NOVO RADY V P 7–8 (2007) (thirty-seven of the . M B URVEY OF EV In re S L. H ULES AURAL L ’ R OLICIES L. R ARYLAND AURAL P ISCLOSURE L ATIONAL . M , to include information that tends to tends that information include to , OURTS D N AND C REATMENT OF ARDOZO , Enforcing Compliance with Constitutionally-Required C RADY V ., T Brady TATE B material as of 2007 and eight more than the number obligations “in either very general or specific terms, RDERS S TR Appendix C (including a sample of individual judge ., All of this material ordinarily must be dis- , 2016 C , O TR disclosures); Brady 201 Brady C ESPONSES TO A ROCEDURE AND ULES R P Brady UDICIAL : R see also id. ISTRICT AND . J UDICIAL D Criminal Discovery, Standing Order No. 2015-5 (D. Or. Mar. 16, ED . J L.R. 116.2 (Disclosure of Exculpatory Evidence). This includes crimi- F RIMINAL OURTS , ED Id. C TATES F UMMARY OF In re C EH , (collecting local district court rules and standing orders). S Hon. Emmet G. Sullivan, materiality standard. Y material); 200. See D. Mass. L.R. 116.1 (Discovery in Criminal Cases). 201. 199. In 2011, thirty-eight districts had a local rule or standing order that codi- ., A S NITED ISTRICT TR ULES OF HORPE RIAN B example, example, the local rules of the District of Massachusetts, developed with the help of Judge Wolf, which are among the require most prosecutors rigorous, to disclose information about search warrants, electronic surveillance, consensual interceptions, and unindicted co-conspirators—in identifications, addition to everything already enumerated in Federal Rule of Criminal Procedure 16. negate the defendant’s guilt or to cast doubt on the admissibility of the government’s evidence, or that could be used to impeach government witnesses. require the government to disclose all exculpatory evidence—de-than broadly more fined fied the government’s and/or provide[d] timing requirements.” of districts with a similar rule or order in 2004. U download=442:2015-5-in-re-criminal-discovery download=442:2015-5-in-re-criminal-discovery [https://perma.cc/WQ5B-QGHW]; see also Disclosures: A Proposed Rule (2016) C R T D 09-05 (W.D.Okl. Aug. 20, 2009) (summarizing proposed electronic discovery best practices), http://www.okwd.uscourts.gov/wp-content/uploads/2014/09/ge- nord09-5.pdf [https://perma.cc/H6ZT-6FYJ]; Discovery, Standing Order .njd.uscourts.gov/sites/njd/files/Standing%20Order%2015-2_In%20Re%20Crimi No. 15-2 nal%20Trial%20Scheduling%20%26%20Discovery.pdf (D.N.J. [https://perma.cc/T3J3- Sept. TULV]; 22, 2015), 2015), http://www https://www.ord.uscourts.gov/index.php/court-info/standing-orders? 224 pears to have been steadily increasing over the past decade. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 38 15-JAN-18 9:53 nal records, pending criminal cases, and promises of any rewards or inducements made to government witnesses, regardless of Brady’s whether the material would meet (2011). This was one more than regarding the disclosure of number of districts reporting a local rule (thirty districts had local rule or order governing disclosure of Brady orders addressing ninety-four districts reported having a local rule or order governing disclosure of 39707-nys_72-2 Sheet No. 23 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 23 39707-nys_72-2 39707-nys_72-2 Sheet No. 24 Side A 01/15/2018 10:23:44 206 The Special 205 In re violations sur- case, Judge Brady Ever since, Judge since, Ever Stevens ever since the deba- 207 203 In the Ted Stevens, Longtime Alaska Senator, 204 note 205, at 29. Adam Clymer, 202 See Order, (D.D.C.) http://www.dcd.uscourts.gov/sites/ supra Brady (Aug. 10, 2010), https://www.nytimes.com/2010/08/11/us/ L.R. 116.6 (Declination of Disclosure and Protective Orders). IMES Id. Order Appointing Henry F. Schuelke, United States v. Stevens, No. Standing L.R. 116.1–116.2. Other forms of impeachment material, such as at 29 (although the evidence established that the misconduct was in- N.Y. T Id. See See Id. , LR. 116.2. If the prosecutor is concerned about the safety of witnesses, or Even in those districts in which the entire court has not yet Id. 202. 205. 203. 206. Schuelke Report, 207. 204. Senator Theodore (“Ted”) Stevens was a three-term United States Sena- special counsel determined that the prosecution had “systematic engaged in concealment of significant exculpatory evidence.” Sullivan has issued a standing order on discovery that specifically Sullivan appointed a special counsel to investigate the prosecutors’ behavior and consider the propriety of contempt charges. cle in the Ted Stevens trial of 2008. adopted adopted a local rule or standing order, individual judges have. For example, Judge Sullivan in the District of standing discovery order in all criminal cases Columbia has issued a Nevertheless, he also concluded that contempt sanctions were not appropriate because no specific court order required prosecutors to comply with their constitutional obligations. 2018] closed within twenty-eight days of arraignment, without any request by prior the THE defense. “NEW” DISTRICT COURT ACTIVISM 225 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 39 15-JAN-18 9:53 politics/11stevens.html, [https://perma.cc/AD88-M9QN]. During the trial, Judge Sullivan repeatedly chastised the prosecutors as allegations of faced. After Stevens’ conviction, the prosecution forwarded to the court a “whistle- blower” complaint from an FBI agent detailing additional allegations duct. Later, Judge of Sullivan granted a motion by newly-appointed Attorney miscon- General Eric Holder to vacate the conviction. and supporting memorandum citing legal authority, why such disclosure not be should made.” prior inconsistent statements, must be disclosed at trial. least twenty-one days before otherwise deems that it would be “detrimental to the interests of justice” to make the disclosures required by the local rules, the prosecutor upon can notifying the decline defense. to The do defense so, can then seek a court disclosure, with the prosecution bearing order the burden of demonstrating “by to affidavit compel 1:08-cr-23100231 (D.D.C. Apr. 8, 2009), ECF. No. 375 counsel (Sullivan, J.). The delivered special a vens_report.pdf. Notice of 512-page Filing Report to Hon. Emmet G. Sullivan, report, http://legaltimes.typepad.com/files/ste- Proceedings, Misc. No. 1:09-0198 (mc-00198 (D.D.C. filed Mar. 12, 2012), http:// legaltimes.typepad.com/files/stevens_report.pdf [https://perma.cc/8F84-55VL] [hereinafter Schuelke Report]. dcd/files/StandingBradyOrder.pdf, [https://perma.cc/2BDH-AEJS]. tor from Alaska who was charged with lying on received, Senate including forms of about repairs gifts to he his had ski home in Alaska. plane crash He in August 2010. was killed in an air- Dies at 86 tentional, it was not done in contravention of a “clear and unambiguous order”). 39707-nys_72-2 Sheet No. 24 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 24 39707-nys_72-2 39707-nys_72-2 Sheet No. 24 Side B 01/15/2018 10:23:44 , 208 and Brady Criminal Law 2.0 Kozinski, noting circuit split on whether 8 ( see also n.64 148 material two weeks after indictment, note 183 (reviewing local rules and individual note 198, at 144 (recounting his effort to reinvig- material during plea discussions). Brady although it has occasionally been expressed been occasionally has it although A New Rule Could Help Ensure Prosecutors Share Info with note 198, at supra supra Brady 212 http://www.nysd.uscourts.gov/cases/show.php?db=judge (Mar. 20, 2016), https://www.washingtonpost.com/opin- , supra OST Sullivan, . P , Editorial, , Standing Order for Criminal Cases (Hayes, Mag. J.) (W.D. Mo.), 211 ASH Sullivan, W Many other judges have adopted similar standing or- , See, e.g., See, e.g. See, e.g. See even if not as expansive as Judge Sullivan’s. For example, 209 material. He also has (thus far unsuccessfully) urged his col- note 191, at xxxiii–xxxv (2015) (collecting local court rules and individual 210 District court judges also have participated in efforts to amend 211.10–1210–12,J. Practice Rakoff, of S. Rules Jed (effective Individual Hon. 212. 208. 210. 209. standing orders). S.D.N.Y. Feb. 13, 2017) _info&id=1369 [https://perma.cc/DM3J-LX84]. orate interest in the Advisory Committee in amending Rule 16 in the aftermath of the Stevens case); Letter from Hon. Emmet G. Richard Sullivan, C. Tallman, Judge, Chair, D.D.C., Judicial Conference to Advisory Hon. Comm. on the Rules of the Federal Rules of Criminal Procedure to codify broader and earlier discovery requirements. That effort has largely involved lobbying within the bureaucracy Advisory Committee, of the Judicial Conference or the the Defense 226 directs prosecutors to produce, among other things, all NYU ANNUAL SURVEY OF AMERICAN LAWJudge Sullivan regularly amends his own order [Vol. in 72:187 response to new case law developments, most recently adding prosecutors a requirement “disclose that exculpatory evidence tions.” during plea negotia- \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 40 15-JAN-18 9:53 ders, supra court orders); McConkie, prosecutors must disclose government to produce and in any event “no later guilty than plea.” four weeks prior to any trial or Judge Rakoff recently amended his individual rules to require the Giglio leagues to adopt a local discovery rule for the entire district. http://www.mow.uscourts.gov/sites/mow/files/SWH_COMBINED_STANDING_ ORDER.pdf [https://perma.cc/V3T6-S2MF]; Certificate Criminal Pre-Trial Order (Glasser, J.) (E.D.N.Y.), https://www.nyed.uscourts.gov/ of Engagement pub/pretrial/ILG-crpto.pdf [https://perma.cc/7W3Q-2R87]; Trial Procedure Or- and der—Criminal Trial (Black, J.) (S.D. Ohio), http://www.ohsd.uscourts.gov/sites/ ohsd/files/Criminal%20Procedures%20Form%20%28website%29%203.16.pdf [https://perma.cc/85AG-D3UF]; Criminal Preliminary Trial Order (Barrett, (S.D. Ohio), http://www.ohsd.uscourts.gov/sites/ohsd/files/Criminal%20Pretrial J.) %20order.pdf [https://perma.cc/S984-ANUQ]; Criminal Cases (Carr, J.) Ohio), (N.D. http://www.ohnd.uscourts.gov/home/judges/judge-james-g-carr/criminal-cases/ [https://perma.cc/RM99-QQRL]; Columbia local rules). ions/getting-prosecutors-to-share-what-they-know/2016/03/20/cd5e42cc-eabb- 11e5-a6f3-21ccdbc5f74e_story.html?utm_term=.b8ea6c797f37 [https://perma.cc/ 7PQK-RGVZ] (noting Judge Sullivan’s role in pushing for changes to District of 39707-nys_72-2 Sheet No. 24 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 24 39707-nys_72-2 39707-nys_72-2 Sheet No. 25 Side A 01/15/2018 10:23:44 , . L. AND Plea Bar- V , 64 , at 19. However, it did note 199, at 4 (2011). 242 (2012). 214 supra supra RIEF R. Michael Cassidy, ., took the lead in draft- See 215 . L. B RIM OOPER ET AL https://www.fjc.gov/history/judges/reiss- . U. C ., H See Biographical Directory of Article III Federal M TR A C , 7 AURAL D.C. Judges Weigh Rule to Curb Prosecutor Misconduct L note 198, at 146–47. note 213. See UDICIAL (discussing need for a proposed amendment to Federal . J supra supra ED F So far, the effort to amend the Federal Rules of , 141–47 and the Intractable Problem of Impeachment Disclosures , Zoe Tillman, 213 Id. , In 2011, the Advisory Committee on Criminal Rules again consid- Id. Tillman, Sullivan, (Feb. 3, 2016), https://advance.lexis.com/search?crid=f2e86a3f-ad1b- See See See, e.g. This section provides district court judges with information Closing Fed. R. Crim. P. 16(a)’s Loopholes: Why Criminal Defendants Are Entitled to note 198, at L.J. L 216 215. 214.endorsed Rules Criminal on Committee Advisory the 2006, as recently As 216. 213. ’ . 1429, 1451–52 (2011); Memorandum from Hon. Reena Raggi, Chair, Advi- AT EV R ing. lead to a new section of the Center 2013 Bench edition of Book the for Federal federal Judicial judges—which man of the Judge D.C. Circuit (who along Paul with Judge Sullivan has Fried- been a leader in the push for an amendment to the local rules on criminal discovery for the District of Columbia) However, in 2007, the DOJ persuaded the Judicial Conference’s Standing Commit- tee on the Rules of Practice and Procedure Committee amendment. to oppose the proposed sory Comm. on Federal Rules of Criminal Chair, Procedure, Standing to Comm. on Hon. Rules Mark of Practice R. and Kravitz, Procedure (May 17, porting on proposed amendments to the Federal Rules of Criminal Procedure). In 2012) (re- a 2010 survey of federal district and magistrate judges conducted at the request of the Advisory Committee, researchers with the Federal Judicial Center found that judges were evenly split (51% in favor) on whether to amend Rule 16 to increase prosecutors’ discovery obligations. Laural Hooper et. al, Criminal Criminal Procedure has not succeeded, nor does it presently have the endorsement of the Judicial Conference. Criminal Procedure (Apr. 28, 2009); Judge, D. Vt., Letter to Hon. from Reena Raggi, Hon. Chair, Advisory Comm. Christina Criminal Procedure (Feb. 9, on 2012). President Obama appointed Judge Reiss to the Federal Reiss, Rules of Chief District Court of Vermont in Judges, 2009. 1789–present N 2018]in other fora. THE “NEW” DISTRICT COURT ACTIVISM 227 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 41 15-JAN-18 9:53 the court, the prosecution, the supra defense, and ultimately, the public”); Sullivan, 4227-8e82-ad89fe9bc990&pdsearchterms=LNSDUID-ALM-NTLAWJ-120274871183 7&pdbypasscitatordocs=False&pdmfid=1000516&pdisurlapi=true [https://perma .cc/Y92F-RBWK] (noting that Judge Sullivan emailed the National Law Journal to explain that “[a] federal rule that requires the government to produce all exculpatory material in a readily useable format to the defense serves the best interests of Rule 16 of Criminal Procedure and framing it in the broader context of criminal Christina Hon. “over-incarceration”); address to need the including reform, justice Reiss, Discovery of All of Their Statements an amendment to Rule 16. ered the idea, debating a “discussion draft” of a proposal to amend Rule 16. After hearing objections from DOJ, the Standing Committee again voted (6–5) recommend not any proposed to amendment that year. christina-clairhttps://www.fjc.gov/history/judges christina-clairhttps://www.fjc.gov/history/judges [https://perma.cc/ETT7-LQP9] (entry for Christina Reiss). She was previously a state court judge and a lawyer in private practice. gaining, Discovery 39707-nys_72-2 Sheet No. 25 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 25 39707-nys_72-2 39707-nys_72-2 Sheet No. 25 Side B 01/15/2018 10:23:44 UDGES J REATING ., C OURT TR 217 C C at 18. ISTRICT UDICIAL See id. . J The First Judiciary Act of ED Id. , F disclosures. U.S. D Brady ARRISON But, although it is impossible to H III. 218 ENCHBOOK FOR YNTHIA ., B TR & C 3–8 (2d ed. 1994). The current structure of the fed- C HISTORICAL HISTORICAL CONTEXT YSTEM HEELER S A. A Search for Historical Parallels UDICIAL . J R. W ED F UDICIAL J THE “NEW” DISTRICT COURT ACTIVISM IN USSELL R See EDERAL If there were historical precedents for the “new” district court Having described in Part II the “new” district court activism— 217. See 218. The federal judiciary has undergone several structural changes in its his- F i.e., federal district judges’ muscular engagement, in and out of the circuit court—to serve as the intermediate court of appeals for those circuits, THE as well as the trial court for other types of cases, typically more serious cases than those heard in the district courts. However, the hiring of 1789 distinct “circuit” Act court judges; rather did Supreme Court not justices “riding cir- authorize the cuit” and district court judges sat together in court. panels that constituted the circuit 163–79 (6th ed. 2013). tory and has grown considerably, but it has had a inception. three-tiered structure The since its Constitution provides that States, “[t]he shall be judicial vested in Power one supreme of Court, and the in Congress may from such time to United time inferior ordain and establish.” U.S. Courts Const. art. III, as §the 1. All federal judges are entitled to Article III’s protections good Behaviour,” with of no diminution of holding their salary. Office “during 1789 created thirteen district courts, each with area, to preside as jurisdiction the trial courts in over admiralty cases, minor federal criminal a cases, geographical and minor civil cases in which the United States government was the plaintiff, and authorized the appointment of one district court judge per district. The 1789 Act placed each district in one of three circuits, and created another type of court— 228 about their options, including their supervisory authority to dictate NYUby ANNUALorder or local rule SURVEYthe timing of OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 42 15-JAN-18 9:53 now attempts to place it in historical context. First, it notes the apparent absence of historical precedents for the existing ferment in the federal district courts over these criminal justice issues. Second, it posits some possible explanations “new” for activism in the district the courts with respect development to criminal justice of the in recent years. activism, one might expect to find them during periods when the federal judiciary was regularly were controversial presented in their time. with prosecutions that court, with a set of fundamental criminal justice issues—this justice criminal fundamental of set a with court, section eral courts, including a permanent court of appeals for each of the circuits (which grew in number as the nation grew), with judges courts, appointed dates to the specifically Circuit Court of to Appeals Act of those 1891, also known as the Evarts Act for its sponsor, Senator William Evarts of New York. 39707-nys_72-2 Sheet No. 25 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 25 39707-nys_72-2 39707-nys_72-2 Sheet No. 26 Side A 01/15/2018 10:23:44 R , . 5 HE : T RIGG V P , REEDOM AKER ONSTITUTION F B C NTISLAVERY AND THE OBERT 220 RISIS IN : A , C Prigg v. Pennsylvania, 24 H. R MBIVALENT The Bill of Rights as a Constitu- a as Rights of Bill The A CCUSED and the special status of ILLER A It was juries, popular senti- 222 at 232; at 190–91. When such cases were 219 C. M id. AND THE , The Fugitive Slave Clause and the Antebel- Sorting Out USTICE OHN , J J , supra , OURT 1133 (2012). While the first Fugitive Slave . at 208. C OVER EV OVER note 221; Id. C . R See, e.g. M. C See IST supra UPREME , S 117–20 (1951) (describing how U.S. Supreme Court Jus- at 191. Moreover, the federal circuit courts “were unani- & H Judicial Engagement and Civic Engagement: Four Case Studies OBERT THE OVER . 887, 889–90 (2012) (describing how the Sedition Act was , Id. R CTS AW C at 138–39 (describing how Federalist federal judges as a EV L A id. 1131, 1209 (1991) (“Less than a decade after the Bill of Rights , (1975); H. Robert Baker, LAVERY L. R , 30 L.J. , S , 605, 664 (1993). Many of the cases that arose under the Fugitive Slave EDITION ASON ALE ROCESS The reasons for judicial reticence in this area have been S See, e.g. See generally See generally Y L.J. P . M 221 Similarly, federal trial judges appear to have done little to pro- EO 219. To the contrary, the historical record suggests that some of the judges 220. 221. 222. , 100 G UTGERS LIEN AND ENNSYLVANIA UDICIAL ment, and political agitation that ended such prosecutions, apparently with little encouragement from the bench. 19 of escaped slaves and criminal prosecution them. of those who helped test slavery, including the federal statutes providing for the return Act of 1850 were criminal proceedings brought against abolitionists who sought to rescue or aid fugitive slaves. supported these prosecutions. R P J A 2018]say conclusively whether it happened or not, it is hard to find dence evi- of similar THE “NEW” moments DISTRICT of COURT ACTIVISMsustained judicial protest. For example, the prosecutions brought in the pursuant to Alien and early Sedition Act of 1798 did not appear years to rouse of the Republic the public ire of the federal judiciary. 229 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 43 15-JAN-18 9:53 lum Constitution thoroughly explored by Robert Cover and other scholars. The explanations have included the need by antislavery judges to reduce the cognitive dissonance caused by enforcing laws they believed im- action Congressional of review judicial of novelty relative the moral, as a feature of American jurisprudence, became law, federal judges cheerfully sent men to jail ment.”); for Eric criticizing R. Claeys, the govern- purpose, thus placing “the prestige of the national government behind the rendi- tion of fugitive slaves.” Paul Finkelman, Act of 1793 gave federal and state courts concurrent jurisdiction over cases involving escaped slaves, and contemplated “self help” by slave passed owners, a later in statute, 1850, created exclusive Clause of the Constitution federal and created a federal administrative power apparatus for that to enforce the Fugitive Slave tice Samuel Chase, riding circuit, took an case, Act Sedition a for point that to sentence heaviest the imposed and defendant, active role in the questioning of in the the 1799 prosecution of an obscure pamphleteer). tried in federal court, the judges neither proclivities to acquit.” “welcomed [n]or easily tolerated jury brought to an end through political action after “inferior federal judges appointed by the Federalists all upheld the Act”). tion whole supported the Sedition Act); Akhil Reed Amar, Reed Akhil Act); Sedition the supported whole mous in upholding the new act.” 39707-nys_72-2 Sheet No. 26 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 26 39707-nys_72-2 39707-nys_72-2 Sheet No. 26 Side B 01/15/2018 10:23:44 , For AKER N.Y.U. B 223 AND THE Regulating , , 64 OBERT And there 227 519, 555 (2012) H. R . EV such statements . 513, 538–39 (1974) ONSTITUTION 225 EV C . L. R AL THE . L. R C , United States v. Hanway, 26 F. ARV LAVE H , 100 S But see , 87 UGITIVE note 221, at 119. : A F supra rather than federal courts. But they also avoided the kinds of horta- , 226 224 The Impact of the Anti-Slavery Movement Upon Styles of 37 (2006) (“Judicial deference to congressional consti- LOVER note 221, at 233. note 222; Bruce A. Green & Rebecca Roiphe, OVER C AR G W supra supra , , IVIL . 497, 509–10 (2009) (as the Civil War approached, “judges, who OSHUA , Ex parte Bushnell, 9 Ohio St. 77, 196 (1859) (“Is a judge to treat J C OVER AKER . L C B M . A See, e.g. See See URV ESCUE OF The Rise and Fall of Judicial Self-Restraint 226. 225. Cover describes these statements as examples of the judicial “can’t”— 223. 224. . S R OMING OF THE HE NN i.e., rhetoric aimed not at justifying the result and its underlying principles, but at T A perhaps perhaps these and other reasons, federal judges passed up important opportunities to rule on constitutional and statutory issues in ways favorable to slaves. tory dicta that one finds in the opinions of “new” district court activ- court district “new” of opinions the in finds one that dicta tory ists. Although some antebellum judges opposition to expressed slavery in their their judicial personal opinions, are comparatively brief and modest. They also are more prevalent in the opinions of state were motivated by a largely instrumental view of the law, rejected the rhetoric the of anti-slavery movement by appealing union”); to William E. the Nelson, practical need to Judicial maintain Reasoning in the the Nineteenth Century Discourtesy on the Bench: A Study in the Evolution of Judicial Independence (2012) (“The courts themselves demonstrated a remarkable deference to legislative construction of the Constitution, at least until the 1830s.”); C 230the Fugitive Slave Laws as a means of preserving the Union. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 44 15-JAN-18 9:53 (“[A]dvocates of antislavery lost nearly all these cases, for . . . judges steeped in the instrumental style of reasoning continued to give effect to the related objectives of economic growth and national unity.”). tutional interpretation was a fundamental feature of the early republic’s constitutionalism. Whatever tacit right to review legislation the courts claimed, the power of judicial review was circumscribed by constitutional practice.”); Richard A. Pos- ner, compelled to reach it.” the settled interpretation of the constitution, announced to the country in a previous generation, by Congress assuming to legislate, sanctioned by an unbroken current of judicial overthrown decisions, by the as authority of of should his have a different no individual interpretation? And if convictions a state judge binding can that thus, by his the inter- judicial pretation, constitution alter the constitution when it has obligation, received such acquiescence and sanc- and tion, to what provisions of the be constitution, state or national, are and alteration, safe under the from assumption of change such judicial power? They would be writ- Cas. 105, 121, 126–27 (C.C.E.D. Pa. 1851) (federal district court charged jury that partic- a of enforcement the to resistance armed than more required treason of law ular law, in trial for murder of a slave catcher). justifying the judge, who thus communicates that “morally he indefensible” or but she wishes knows to the explain result “the is sense in which [he or she is] (noting that judicial deference in the early years been of related the to Republic the also fact may that have “key members of volved Congress in the drafting had and ratification of been the Constitution [so personally their] constitutional in- arguments were more than rhetoric”). 39707-nys_72-2 Sheet No. 26 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 26 39707-nys_72-2 39707-nys_72-2 Sheet No. 27 Side A 01/15/2018 10:23:44 229 787, OUTH . S EV 228 REAT L. R G EE HE , T . & L ASH W ILLIAMS The dockets of federal of dockets The W 231 , 56 . 869, 884 (2009) (“[F]ederal crimi- ALKNER The Origins of Judicial Review Revisited, EV F OU . L. R L at 801–05. id. TAN See , S Institutional Design and the Policing of Prosecutors: 1871–1879 43 (1996). Congress also entrusted to , 61 See, e.g. RIALS note 221, at 119–21.can’t” at “judicial 221, a note of example an For Gordon S. Wood, T See LAN supra , K including the federal courts. federal the including LUX OVER K C Rachel E. Barkow, 230 U See See K In the 20th century, federal criminal law vastly increased 228. Such reticence is consistent with efforts to create a more independent, 227. 230. In the late nineteenth century, during Reconstruction, Congress created 229. AROLINA C sive, let it be repealed or modified. But this is a power which the judiciary can not reach.”). professional judiciary. Or How the Marshall Courts Made More Out of Less slave is secured to him by the federal constitution, no good citizen, whose liberty and property are protected by that constitution, will interfere to prevent this provision from being carried into full effect.”); Wright v. Deacon, 1819 WL 1857, at *2 (Pa. 1819) (“Whatever may be our private opinions on the subject of slavery, it is well known that our southern brethren would not have consented to become par- prosper- much so enjoyed have States United the which under constitution a to ties ity, unless their property in slaves had been secured.”). opinion by a federal judge, see Miller v. Ohio McQuerry, 1853) 17 (“With F. the Cas. abstract 335, principles 339 of (C.C.D. slavery, courts this called law to have administer nothing to do. It representatives, in making constitutions, and in the enactment of is laws, to consider for the people, who are the laws sovereign, of and nature, their and the immutable principles judges can not explore. Their action is limited to conventional rights. They look to of right. This is a field which the law, and to the law only. undermine A and overturn disregard the social of compact. If this, the by law be the injudicious or judicial oppres- powers, would 2018]is scant evidence of extrajudicial public engagement by federal trial judges, once they THE became “NEW” judges, DISTRICT in COURT the ACTIVISM antislavery cause. and so did the resources of the federal criminal apparatus, law enforcement 231 discretion.”); judicial such any of exercise the disclaim I myself, For sand. upon ten JACK a negro man v. MARY MARTIN, 1835 WL 2938, at *528 (N.Y. 1835) (“How- ever much . . . we may deplore the existence of slavery in any part of the Union, as fugitive his reclaim to master the of right the as yet, evil, local a as well as national a \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 45 15-JAN-18 9:53 the DOJ the enforcement of other new federal crimes such as conspiracy to de- nal law itself was a limited category for much of the nation’s history. Federal criminal law barely existed prior to before 1896. that date.”). Indeed, there was no federal penitentiary the Department of Justice and entrusted it, along with the Freedmen’s Bureau and Federal Marshals Service, with enforcement of the newly enacted Reconstruction Amendments and civil rights acts. 803–05 (1999) (noting that, before 1800, judges were appointed based on and political social connections, and “were involved in politics and governing to an tent ex- that we today find astonishing,” but after courts purely judicial bodies increased dramatically. 1800, More and more, law grew sep- the “tendency to make the arate from politics . . . . [and] cases and to avoid the most explosive courts and partisan political issues.”). Several schol- now tended to concentrate on individual ars have suggested that this repositioning of the judiciary as professional and independent was a necessary precondition practice of for judicial review. the development of a more robust Lessons from Administrative Law 39707-nys_72-2 Sheet No. 27 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 27 39707-nys_72-2 39707-nys_72-2 Sheet No. 27 Side B 01/15/2018 10:23:44 : , see L. The 579, . ENT Conspir- EV .-K OCTRINES Mapp v. HI D C . L. R AW AL , 74 L C and 511, 512 (2002)); . 236 , 100 , EV RIMINAL 159 (1994) (“[T]he Eight- . R C CI Abraham S. Goldstein, 771, 779–86 (1980). . S . A Statistical Study of Federal Criminal OL EV EDERAL . P , F ROHIBITION M 405 , 405–06 (1959); Jed S. Rakoff, A . L. R P See generally . 494, 497 tbl. 1 (1934) (showing that the UQ Law and the Creative Mind L.J. 1374, 1398–99 (suggesting that federal pros- D , 96 URCHISON ALE Federal Sentencing in 2007: The Supreme Court ROBS L.J. Y Miranda v. Arizona ATIONAL , 18 but it is not clear that federal judges . P N ALE The conception of the judge also had , 68 Y 234 M. M 235 Federal District Court Judges and the History of Their Courts , When Was Judicial Self-Restraint? relief and largely was concentrated in the 232 ONTEMP , 117 ENNETH K & C granted NFLUENCE OF , I AW L Daniel C. Richman, Aziz Z. Huq, Susanna L. Blumenthal, Nevertheless, it is hard to find evidence of judicial agita- , 1 See See See See, e.g. How Political Parties Can Use the Courts to Advance Their Agendas: Federal 233 Erwin C. Surrency, ORGOTTEN To the extent that federal judges attempted to limit executive 234. 231. 235. 372 U.S. 335 (1963) (holding that indigent defendants in state prosecu- 233. 232. 151, 225–26 (1998) (noting that “the creativity of the judge was increasingly F . EV HE R T authority in criminal law enforcement, that effort was reflected in decisions that opinions of the Supreme Court. For example, the Warren Court’s revolution in criminal procedure was largely a “top down” revolution, with many of the most significant cases Gideon of that period—like v. Wainwright pushed back. shifted, with the braced. judge’s creative functions increasingly em- recognized and celebrated in the nineteenth century . . . . It was not the mechani- cal jurisprude but the judicial genius who embodied the professional ideal”). fraud the United States and mail fraud. 232 district judges, especially on the criminal side, became considerably NYU more crowded, as ANNUAL Prohibition and other vice crimes became staples SURVEY OFof AMERICAN law LAW enforcement. [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 46 15-JAN-18 9:53 tion about what today we might Some call prosecutors balked at enforcement of some of the least popu- federal over-criminalization. lar of these new laws, generally eenth Amendment and the Volstead Act produced inundated the federal courts.”); Edward Rubin, a flood of cases that nearly Prosecutions Holds—the Center Doesn’t acy to Defraud the United States 40 F.R.D. 139 (1966). Federal Mail Fraud Statute (Part I) ecutors around the country may not have shared DOJ’s commitment to prosecut- DOJ the between battle such vivid one describing and Prohibition, of violations ing and the United States Attorney for the Southern District of New York). tions are entitled to appointment of counsel). federal courts’ criminal docket in 1932 had more than doubled since 1918, the last year before Prohibition). second half of the nineteenth century,” eventually going from an and unpaid’ judicial infrastructure “‘understaffedheaded by justices perennially distracted by the travails of riding circuit” to “a real third branch of government”) (quoting Howard Gillman, Courts in the United States, 1875–1891 588 (2012) (noting the “institutional transformation of the federal courts in the 39707-nys_72-2 Sheet No. 27 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 27 39707-nys_72-2 39707-nys_72-2 Sheet No. 28 Side A 01/15/2018 10:23:44 , id. See But see See, e.g. In fact, Brady v. Ma- 240 967, 1015 (2000) . But see EV B.U. L. R note 232, at 23–31 (same). , 80 note 6, at 94 (district court judges supra , supra , ORRIS Separate But Equal?: The Supreme Court, the Lower M URCHISON decision also involved an appeal of a criminal con- M Lochner see also , United States v. Wade, 388 U.S. 218 (1967) (new trial required This lesser role in generating legal change is, of course, legal change role in generating This lesser Ashutosh Bhagway, 239 However, even the Warren Court cases involving federal See See, e.g. —bypassing the lower federal courts because they were ap- 238 237 236. 384 U.S. 436 (1966) (holding that criminal defendants subjected to cus- 237. 367 U.S. 643 (1961) (holding that evidence obtained by state agents pur- 238. The infamous 239. 240. at 94 (noting that “[f]ar fewer district judges view their role as ‘law makers’” than peals peals by criminal defendants from the highest courts of the various states. dant’s Sixth Amendment right to counsel); Elkins v. United States, (1960) 364 U.S. 206 (evidence acquired by Amendment state rights could not be used in federal prosecution). agents in violation of defendant’s Fourth todial interrogation must be advised of, and waive, their constitutional rights their for statements to be admissible). suant to unconstitutional search was inadmissible). viction from a state’s highest court, which bypassed the lower Lochner federal v. courts. New York, 198 U.S. 45 (1905) Process (holding Clause unconstitutional state under labor Due law limiting number of week). hours bakers could work per where defendant deprived of counsel at line up); U.S. 201 (1964) (requiring suppression of evidence Massiah obtained in violation of defen- v. United States, 377 2018]Ohio THE “NEW” DISTRICT COURT ACTIVISM 233 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 47 15-JAN-18 9:53 generally “anticipate that changes in case law will [largely] come from above”); do other judges). consistent with district courts’ place in the judicial hierarchy, which most district court judges historically have internalized. criminal criminal prosecutions reflected the “top down” aspect of with the the Supreme era, Court (and occasionally the circuit courts), but not the district courts, generally leading the way in articulating new doctrine. Federal Courts, and the Nature of the “Judicial Power” (noting that the “institutional culture of the lower judiciary . come . a . culture of . obedience”); has largely be- rights could not be used against him in subsequent criminal prosecution). in originated entrapment of (defense (1932) 435 U.S. 287 States, United v. Sorrells lower federal courts); ryland, 373 U.S. 83 (1963) (federal district petitioner court who granted was habeas deprived relief of to materially state exculpatory tion). The leadership role of the evidence Supreme Court in criminal procedure, relative to by the prosecu- the district courts, also is reflected in cases that predate the Warren Court. McNabb v. United States, 318 U.S. 332 (1943) (statements obtained in violation of defendant’s statutory right to prompt presentment must be excluded); Nardone v. United States, 308 U.S. 338 (1939) (requiring suppression of indirectly evidence as obtained a result of illegal wiretap); Nardone (1937) v. (same as United to States, evidence obtained 302 directly U.S. from illegal 379 wiretap); poison- the of fruit the Silverthorne (invoking (1920) 385 U.S. 251 States, United v. Co. Lumber ous tree doctrine (though not using that term)); Weeks v. United States, 232 U.S. 383 (1914) (evidence obtained in violation of defendant’s Fourth Amendment 39707-nys_72-2 Sheet No. 28 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 28 39707-nys_72-2 39707-nys_72-2 Sheet No. 28 Side B 01/15/2018 10:23:44 R : AS- O. O. H IMES ERROR- T ; see also , 17 T ILLIAM ILLIAM W W AR ON McNabb-Mallory ERILOUS W , P note 14, at 580–92, TONE TO THE supra R. S , 1798 1798 UTOBIOGRAPHY OF A 241 A Study of the Constitutional Aspects of Aspects Constitutional the of Study A CT OF Leadership in the Struggle for Law Re- EOFFREY UNTHER HE A G G Id. See See EDITION Nor did most federal judges protest S 242 1939–1975: T ROM THE Shortcomings in the Administration of Criminal Law EARS , F Comm. on the Judiciary, 85th Cong., 2d Sess. 2–6 (1958). Y S. OURT ARTIME Hearings on S. Res. 234 Before a Subcomm. on Constitutional C W HE 17, 26–28 (1965–66) (criticizing judges for ignoring the harmless error , T 92–93 (1980). Although elected state judges were the worst, “even fed- PEECH IN During the McCarthy era, the federal judiciary also was notably L.J. S 241. For example, U.S. District Judge Alexander Holtzoff, co-author of the 242. Portions of the Alien Registration Act made it a criminal offense to , 17 F.R.D. 251, 254 (1955) (address before the Missouri State Bar) 314 (2004). Judge Learned Hand was one of the few judges who spoke out OUGLAS OUGLAS REE Hon. Alexander Holtzoff, rule, which rendered inadmissible a defendant’s confession if obtained during an D F D TINGS ISM when it became clear that the sentences meted out to similarly situated federal offenders—prosecuted pursuant to the ever-multiply- against McCarthyism. At the time, he was a member of the Second Circuit Court of Appeals and had taken senior status. eral judges, named for life, were affected.” silent in the face of prosecutions of alleged communists pursuant to pursuant communists alleged of prosecutions of face the in silent the Alien Registration Act. against “permit[ting] the pendulum to swing so far in [the direction of protecting the accused] as to neglect the interests of society as a whole and the rights of the victim of a crime.” Hon. Alexander Holtzoff, form criminal procedure treatise Barron & Holtzoff, now known as Wright & Miller, and Miller, & Wright as known now Holtzoff, & Barron treatise procedure criminal Secretary to the Advisory Committee that drafted the Procedure, Federal Rules was of critical Criminal of the Supreme Court’s adoption of the unnecessary delay between arrest and initial appearance before a magistrate judge. In a statement to the Senate Committee on that the the Judiciary, Advisory Committee Judge of Holtzoff the noted Federal Rules of Criminal Procedure cally specifi- rejected such a proposal and that there was no requirement to “immediately.” magistrate a before party rested bring an ar- Police Detention Prior to Arraignment and of Confessions Obtained Such from Suspects Detention: During Rights of the Senate He also made this point in United States v. Heideman, 21 F.R.D. 335, 339 (D.D.C. 1958) (“The Committee rejected this proposal on the ground that such a penalty for a violation of the Rule would be too drastic delinquent and would officer, be visited but not on on the the public.”). In other fora, Judge Holtzoff warned 654–72 (discussing Hand’s public speeches condemning liam McCarthyism). O. As Douglas Wil- wrote in his autobiography, judges sawed by during public passions and this transformed into agents of era intolerance.” “were whip- rule and reversing judgments innocence). on technicalities that do not bear on guilt propri- or desirability, . . . the teach or advise abet, advocate, willfully or “knowingly or ety of overthrowing or destroying any Government in the United States by force or violence,” or to organize or be a member of any association advocating or encour- aging such action. 18 U.S.C. § 2583 (1940). Pub. L. No. 671 76-670, § (1940) (repealed 2, 54 Stat. 1952). 670, More than under this one law hundred in people the 1940s were and prosecuted 1950s. 234in some cases, lower court NYU judges were dant” hostile ANNUAL decisions of to the the Supreme SURVEYCourt. “pro-defen- OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 48 15-JAN-18 9:53 39707-nys_72-2 Sheet No. 28 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 28 39707-nys_72-2 39707-nys_72-2 Sheet No. 29 Side A 01/15/2018 10:23:44 R R R See The (1973). 243 , 9 F.R.D. Criminal RDER O , sometimes that ITHOUT . 1, 4 (2008) (“For the EV W For the changes not supra AW This was essentially the 248 : L . L. R 250 at 5 & n.12 (collecting opinions note 243, at 2045. LA , A supra His slim 1973 book , 60 , As noted ENTENCES 244 S 249 note 17 note 17, at 9–11 (reviewing history of fed- note 17, at 2. 523, 538 (2007) (describing judges’ “over- What ensued was a loud clash be- which was arguably the single most From Omnipotence to Impotence: American Judges . L. 247 245 supra , supra supra Sentencing Guidelines: A Need for Creative Collabora- note 241) also publicly decried the discrepancies , RIMINAL , , RIM , C Defects in the Administration of Criminal Justice supra 246 . J. C T ABRANES ABRANES ABRANES S Sentencing Guidelines RANKEL HIO & C & C & C 2043, 2044 (1992). E. F 4 O TITH TITH TITH , L.J. S S S Marvin E. Frankel, Frankel, Hon. Nancy Gertner, ARVIN ALE See M See See See See See Y As Frankel later wrote, these developments prompted federal Appellate Review of Sentencing Decisions 243. 244. Judge Holtzhoff ( 245. 246. 247. 250. 248. 249. , 101 Sentences: Sentences: Law Without Order tween federal judges, Congress, the Sentencing Commission, and the Executive Branch, as judges reacted to their loss of virtually unfettered discretion in imposing sentences. most most notable exception, of course, was Judge Marvin Frankel of the Southern District of New York. only curtailed the power of the individual district court judge, but did so in an arena in considered, which district including court by judges themselves, had uniquely long qualified mine been to the appropriate deter- outcome. first wave of the “new” district court activism—focused on a single issue, sentencing authority. As recounted in Part II, which never fully died out after the Supreme Court upheld the new this activism, judges, “so quiet about sentencing for so long,” suddenly [to come] to life—often passionately.” influential influential act of extrajudicial speech by a judge ever, laid the intellectual foundation for the Sentencing Reform Act of 1984, ushered in the which era of mandatory minimum sentencing statutes and the Sentencing Guidelines to curb the very judicial discretion that Frankel found lawless. among judges in sentencing pursuant to the indeterminate sentencing regime. Hon. Alexander Holtzhoff, 303 (1949) (speech before the American Bar Association’s Law). Section on Criminal eral district courts’ sentencing authority); Carissa Byrne Hessick & F. Andrew Hes- sick, and articles in which federal judges expressed their disapproval of the Sentencing Guidelines). 2018]ing federal criminal laws—varied wildly around the country. THE “NEW” DISTRICT COURT ACTIVISM 235 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 49 15-JAN-18 9:53 battle was waged in Guidelines the and the form Sentencing of Reform Act judicial fora. some of it was waged in extrajudicial unconstitutional, but opinions holding the blown sense of their own expertise in the indeterminate sentencing days”). greater part of American history, appellate review of federal criminal sentences was sentences criminal federal of review appellate history, American of part greater non-existent in most cases.”). tion and Sentencing 39707-nys_72-2 Sheet No. 29 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 29 39707-nys_72-2 39707-nys_72-2 Sheet No. 29 Side B 01/15/2018 10:23:44 . P. The RIM 251 Then, in The Invisible . R. C 252 ED The Speedy Trial F Linda M. Ariola, Deborah A. Booker United States v. Davila, 133 S. Ct. in the context of Congress’s 713, 713–23 (1979) (discussing history . see generally EV See also 11(c)(1). Prior to the amendment, federal Booker L. R . P. B. Why Now? Nancy J. King & Ronald F. Wright, RIM ORDHAM 1. The Impact of . R. C F ED F , 47 325 (2016). See generally . EV . L. R EX T First, the “new” district court activism may be attributable, at This section sets forth some of the possible reasons for the 251. Since then, Rule 11 has provided that “[t]he court must not participate 252. 18 U.S.C. §§ 3161–3174 (2012); , 95 Revolution in Plea Bargaining: Managerial Judging and Judicial Participation in Negotia- tions trial courts’ discretion in controlling their criminal dockets, citing a concern about delays in bringing criminal cases to trial. same year, Congress enacted the Speedy Trial Act, which limited 2139, 2146 (2013). Most states have not followed suit and continue court to judges to allow be involved trial in plea discussions, although the extent to which state judges do so varies. the 1980s, Congress substantially curtailed the sentencing authority application the expanding laws of passage the with judges federal of of mandatory minimum sentencing and States Sentencing establishing Commission. The trend the continued in the United 1990s, when Congress further expanded statutory sentences mandatory but minimum also restricted federal district courts’ authority over least in part, to the effect of ongoing assault on the federal judiciary’s authority in the administration of criminal law, which predates the mandatory sentencing laws of the 1980s. For example, Federal in Rules of 1974, Criminal Procedure Congress to amended kick federal the judges out of would defendants that concern a citing process, plea-bargaining the feel coerced into pleading guilty by the judge’s involvement. in [plea] discussions.” 11(e)(1), Notes of Advisory Committee committee’s note on to 1974 Rules—1974amendment. Amendment. advisory ahead of the Courts of Appeals and the Supreme Court. 236 sentencing scheme in 1989, has been resurgent in NYU the last decade with ANNUALan expanded set of SURVEY concerns. The next section OFexplores why. AMERICAN LAW [Vol. 72:187 “new” district court activism of the plains past the decade. recent It engagement by asks district what court ex- highly personal way, judges, in criminal justice reform, including visibly ad- often in a vocating for doctrinal, legal, and policy change, in many cases \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 50 15-JAN-18 9:53 of Speedy Trial Act and the negative reaction to it from various quarters, including trial judges). DeMasi, Edward D. Loughman III, & Timothy G. Reynolds, et al., judges’ participation in plea bargaining was “common practice.” Act: An Empirical Study 39707-nys_72-2 Sheet No. 29 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 29 39707-nys_72-2 39707-nys_72-2 Sheet No. 30 Side A 01/15/2018 10:23:44 R . EV Com- 256 AEDPA: . U. L. R The Sentenc- W The trend N 255 , 96 John H. Blume, 1131, 1151 (2002) (observing that see generally 259 (2006); Brian M. Hoffstadt, . EV L.J. note 17, at 136 (in an era of mandatory L. R MORY E 254 supra , and review of previously-entered state and state previously-entered of review and , 51 ORNELL C 253 , 13 (the Guidelines “increased [prosecutors’] power: the ABRANES , 91 L.J. 2 note 39 and sources cited therein. & C ALE TITH which ended more than two decades of mandatory ad- S 123 Y See See supra Padilla v. Kentucky, 559 U.S. 356, 362–64 (2010) (discussing history of the of history (discussing 362–64 (2010) 356, U.S. 559 Kentucky, v. Padilla Booker, No institutional actor in this space suffered a more substantial See 253. Legislation enacted in 1990 repealed district courts’ authority to issue a 255. 256. 254. The Anti-Terrorism and Effective Death Penalty Act of 1996 greatly re- Booker, to restrict district courts’ power to prosecutors, continued into the early 2000s, including the sentencing authority, and enactment of the Feeney Amendment shift in 2003, which subjected dis- more trict court judges’ downward departures to increased scrutiny. federal criminal judgments. sions and manipulation of the Sentencing Guidelines. herence to the United States Sentencing Guidelines, fundamentally quo status the upended it which to extent The dynamic. this altered blow as a consequence of these measures than the federal court district judge. And no group received a greater boost to its authority than federal prosecutors, who now were largely able to dictate the sentence that a defendant would receive (and the collateral consequences that would flow from conviction) through charging deci- ing Judge as Immigration Judge recommendation at sentencing against deportation in cases of non-citizen defendants. judicial recommendation against deportation (JRAD) under U.S. immigration law, which was repealed in 1990); Margaret H. Taylor & Ronald F. Wright, 1413, 1414 (2002). Guidelines, prosecutors could in effect control the sentence through careful selection of the charges Effects the and Prosecutors of Role the Assessing Disparity: Racial and Sentencing Mandatory and facts presented); Sonja of B. Starr & M. Marit Rehavi, 2018]conse- deportation the over including ways, other in justice criminal convictions of quences THE “NEW” DISTRICT COURT ACTIVISM 237 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 51 15-JAN-18 9:53 choices prosecutors made more conclusively determined the sentence” than ever before). mon-Law Writs and Federal Common Lawmaking on Collateral Review JRADs were “simply washed out of the [Immigration and Nationality Act] statute among the waves of increasingly harsh congressional measures intended to crack down on noncitizen criminal offenders”). stricted federal courts’ authority to grant habeas relief to federal and state prisoners. It imposed a one-year statute of limitations, whereas previously there had been none; tightened standards for second or subsequent federal courts’ petitions; authority to placed hear limits a petition on from a state conviction procedural in the default; case and of restricted the authority of federal where a courts claim was to previously adjudicated grant on the relief merits in state court to those instances where the decision was “contrary to, or involved an unreasonable applica- the of Court Supreme the by determined as law, Federal established clearly of, tion United States.” 28 U.S.C. § 2254(d) (2012); The “Hype” and the “Bite” 39707-nys_72-2 Sheet No. 30 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 30 39707-nys_72-2 39707-nys_72-2 Sheet No. 30 Side B 01/15/2018 10:23:44 . L. , 79 222 Booker RIM to hold to “foretold . C But be- ” or would M A 257 Blakely EVOLUTION Blakely R 261 to resurrect the —may have been was widely seen as an undid “every significant status quo ante 260 The Future of Federal Sentenc- Booker Booker outraged conservatives, who Booker EGIME AND THE R Booker LD 326, 330 (2011) (noting that “ Blakely v. Washington, 41 O at 1482. Train Wreck? Or Can the Federal Sentencing . R. Restored Balance? A Look at Data on Plea G HE Id. ’ , T ENT note 255, at 15 (“ to hold Washington State’s sentencing scheme Booker note 39, at 1494. . S ED supra F Has It may nevertheless have been a galvanizing supra Apprendi OCQUEVILLE 259 , 23 T note 39, at 1425. In addition to holding that the Guidelines .” Stith, 1, 14 (2008) (“Given that . , Frank O. Bowman, III, supra EV LEXIS DE A Booker Starr & Rehavi, Paul J. Hofer, in the hands of federal prosecutors that had occurred See See See, e.g. See . L. R 258 OLO 258. Stith, 257. 261. 260. 259. . 217, 262 (2004) (predicting that, if the Supreme Court applied Court Supreme the if that, (predicting (2004) 262 217, . EV cause cause it had no effect on statutory mandatory minimum sentencing (or many of the other limits above), on it only trial partly courts’ ameliorated authority the discussed power” consolidation of “indecent R Congress took no action in Guidelines the wake of by sentences—despite incorporating predictions that it them would further emboldening. The “new” judicial activism therefore may be into statutory an example of a “revolution of rising expectations.” minimum moment moment for federal trial judges, especially those whose careers preceded the Guidelines but who had long given up on any real hope of change emanating from Congress or the Supreme Court. That the United States Sentencing tempt Guidelines to restore unconstitutional, the system Congress “as close would as possible impose at- to “ a system far more the harsh, far less advantageous to defendants, and far less hospitable to judicial discretion.”); David M. Zlotnick, ing Policy: Learning Lessons From Republican Judicial Appointees in the Guidelines Era System Be Saved? A Plea for Rapid Reversal of would henceforth be advisory rather than binding, provision of the Feeney Amendment.” earthquake in federal sentencing law.”). The earthquake was preceded by tremors. First, the Supreme Court revitalized the jury trial right in Apprendi v. New Jersey, 530 U.S. 466 (2000), holding that any fact increasing the statutory maximum sentence a defendant faced was an element that must be proven beyond a reasonable doubt to a jury rather than a sentencing factor that could be established by a pre- ponderance before a judge. In Blakely v. Washington, Supreme Court 542 extended U.S. 296 (2004), the U. C 238in federal criminal law was of “earthquake” proportions. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 52 15-JAN-18 9:53 over several decades. viewed the opinion as a judicial coup d’etat, many commentators initially believed it was only a matter of time before Congress acted.”). has not solved all of the problems with federal sentencing,” with many remaining problems traceable “to mandatory minimum penalties and enhancements”). the continuing presence, and even expansion, of unconstitutional because the facts establishing the written, has Stith Kate As jury. a than rather judge a by found effective were maximum sentence the unconstitutionality of the mandatory Sentencing Guidelines, as next year decreed in the Bargaining and Sentencing (U. Chi. Press 1998) (1856) (explaining his theory of the revolution of rising ex- 39707-nys_72-2 Sheet No. 30 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 30 39707-nys_72-2 39707-nys_72-2 Sheet No. 31 Side A 01/15/2018 10:23:44 TUD- and Booker S Booker 264 ASES The Revenge : C Rita at 1411–12 (“More and its extension in at least in part to id. ISCRETION D decisions, Booker Apprendi Especially once the Su- UDICIAL J 263 Booker 393, 430 (2005) (describing . and the Reassertion of Judicial Limits on Limits Judicial of Reassertion the and EV also may have given judges rea- extended the Supreme Court’s that this discretion encompassed . L. R R . . . occurred in the wake of Congress’s own 266 Booker O Booker PPOINTEES AND A Booker , 84 note 234, at 1394 (“[O]rganizational cultures can note 39, at 1426 (“[I]t is not a mere coincidence, in note 249, at 533 n.40 (citing Federal Judicial Center and many have attributed supra supra Kimbrough supra 267 United States v. Booker v. States United EPUBLICAN : Blakely , R note 257 (explaining impact of , Stith, 268 may have served as a “wake-up” call which focused their Gertner, Richman, LOTNICK See See See supra See, e.g. that district courts really did have discretion in sentenc- the experience of exercising real discretion in sentencing ). M. Z Booker 265 Even Even for those judges who came of age during the Guidelines 262 262. 263. 264. Rita v. United States, 551 U.S. 338 265.(2007). Gall v. United States, 552 U.S. 38 266.(2007). Kimbrough v. United States, 552 U.S. 85 267. (2007). 268. Mullaney v. Wilbur v. Mullaney AVID judges got a taste of true engagement with sentencing policy. son to believe that their protests could make a though, difference. as For a al- formal matter, doctrinal shift of at least five years earlier regarding the meaning of the jury trial right, preme Court made clear in two post- the judiciary’s Guidelines. long-standing opposition to the Sentencing Gall, ing—and held in era, disagreements over policy with the Sentencing and its progeny thus may Commission— have injected a renewed energy into the federal judiciary to address injustices in the criminal justice system more broadly. The result in D pectations: “Every abuse that is then eliminated seems to highlight those that main re- . . . the evil has decreased . . . but the sensitivity is greater.”). 2018] THE “NEW” DISTRICT COURT ACTIVISM 239 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 53 15-JAN-18 9:53 post- attention on the disproportionality sentences of that the remained mandatory and minimum on the Guidelines irrationality as of applied the advisory in many cases. statistics showing that 89.97 percent of were confirmed after the Guidelines went then-active into effect and thus had “no experience federal district court judges with discretionary criminal sentencing”). change. Life-tenured judges had, over time and through self-selection, become increasingly inured to the way the Guidelines and mandatory minimums cut to the heart of what their predecessors saw as the judge’s role.”); and the cases leading up to it as “a healthy exercise in correcting power imbalances power correcting in exercise healthy “a as it to up leading cases the and among the branches of our government,” whereby “the Court circled back around to renewed concern with the limits of legislative power as the issues took on a very different cast in the world of mandatory minimums and enforceable guidelines”); extraordinary intervention in 2003 and Main Justice’s subsequent restrictions (required by Feeney) on local prosecutorial autonomy.”); Ian Weinstein, of Legislative Power to Define Crimes and more judges [had] become accustomed to the Guidelines”). my view, that both Blakely 39707-nys_72-2 Sheet No. 31 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 31 39707-nys_72-2 39707-nys_72-2 Sheet No. 31 Side B 01/15/2018 10:23:44 This RIME IN C 272 Moreo- , 1 (Sharon 270 EPORTING HINKING R T RIME majority rested its holding Introduction: Mapping the New USTICE C 68 (June 2007) (unpublished J RA Booker E NIFORM Meanwhile, over the past dec- RIMINAL : U States Trim Penalties and Prison Rolls, Even 269 C EW UIDELINES G N (May 18, 2017), https://www.nytimes.com/2017/ HE T in the context of the power struggle between the NVESTIGATION IMES in I States around the country are experimenting , ENTENCING Booker 2. Social and Political Context 271 S N.Y. T , (2014), https://ucr.fbi.gov/crime-in-the-u.s/2014/crime-in- UREAU . B , Richard A. Oppel, Jr., At least before the 2016 elections, more fundamental EDERAL TATES ED F F at 27. Sharon Dolovich & Alexandra Natapoff, 273 S Id. See, e.g. See See NITED Second, the larger social and political context in which the ROM THE 273. Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372. 271. 272. 270. 269. U F movement has gained traction at the federal level as well, where the Fair Sentencing Act of 2010 reduced the disparity between sentencing for crack and powder cocaine and increased eligibility for certain forms sentences. of relief from statutory mandatory minimum ade, people of different political views have coalesced around the idea that we have overly nately relied accepted on collateral incarceration consequences of and convictions. indiscrimi- THE our “current historical moment,” it is one “in justice system . . . has become a primary battleground for civil rights which the criminal and social justice.” ver, as Sharon Dolovich and Alexandra Natapoff have described with criminal justice policies to downsize their prison populations and keep people out of the criminal justice system entirely. “new” district court activism has occurred is Since an the mid-1990s, the important United States factor. has enjoyed more than two decades of declining crime rates. IES 240 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 54 15-JAN-18 9:53 05/18/us/states-prisons-crime-sentences-jeff-sessions.html [https://perma.cc/ CG3Z-YM8M] (citing changes in more than thirty states prison in sentences and recent expand years alternatives to to incarceration limit in order to down keep and costs crime rates low). demn the enormous economic costs and questionable public safety benefits of the current system.”). as Sessions Gets Tough the-u.s.-2014/tables/table-1 [https://perma.cc/7FXB-W8C] (indicating an overall decline in violent crimes—murder, rape robbery, aggravated assault—and nonviolent crimes—property crimes, burglary, larceny, and motor vehicle theft—between 1995 and 2014). Dolovich & Alexandra Natapoff eds., 2017) (“Liberals and conservatives alike con- report) (available at http://faculty.rwu.edu/dzlotnick/OSI-Report-june2007.pdf [https://perma.cc/7GEC-2KEN]) (“While the and academia, Congress, in many Amendment, Sixth the of interpretation its upon even the judiciary, saw branches and a delayed reaction to the Feeney Amendments and the longstanding war on judicial discretion.”). Criminal Justice Thinking 39707-nys_72-2 Sheet No. 31 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 31 39707-nys_72-2 39707-nys_72-2 Sheet No. 32 Side A 01/15/2018 10:23:44 . , 1 EV 278 274 N.Y. , L. R (2016), 1361, 1452 . ONTROVERSIES AYTON EV C 2015 3 D Keith A. Findley, in , . L. R L. . See A 2014). , 29 U. U. P U. , 152 , XONERATIONS IN The Innocence Revolution and Our , E Countermajoritarian Hero or Zero? Rethinking the Other estimates of the number of Sarah Lucy Cooper ed., The Innocence Revolution and the Death Penalty XONERATIONS 275 E 277 3 ( , https://www.innocenceproject.org, [https://perma MERICA A ROJECT EGISTRY OF Unity Was Emerging on Sentencing. Then Came Jeff Sessions. P R 573 (2004). L ’ . L. AT ASES IN (quoting Kenneth Pye’s observation in 1968: “A hundred years N C RIM Since 1989, at least 350 people in the United States have id. Corinna Barrett Lain, Mark A. Godsey & Thomas Pulley, HE NNOCENCE 276 T I See See . J. C T (May 14, 2017), https://www.nytimes.com/2017/05/14/us/politics/jeff-ses- The innocence revolution is an additional part of this larger S 278. 274. Carl Hulse, 275. 277. 276. NNOCENCE I HIO IMES T IN wrongful convictions in means other than the DNA evidence, put the number at over United 1,700. States, including through context. gether and were “on the verge sentences and creating new of programs to help offenders adjust winning to life after prison” reductions in mandatory in light minimum of “the success shown by similar changes at the state level”). 265 (2004); Lawrence C. Marshall, O The United States is now home to projects, a many of network them of non-profits local based at innocence law schools, together sions-criminal-sentencing.html [https://perma.cc/U2WK-BTSD] (describing how, prior to 2016 election, conservatives and liberals in Congress were working to- 2018] change to federal criminal sentencing law was close to passage. The financial crisis of 2007–08 THE is another “NEW” important part DISTRICT of this COURT so- ACTIVISMcial and political context, as it not only focused national attention on the economic trade-offs of doubt on mass whether government incarceration, actors could but be trusted to also and prevent address cast corporate wrongdoing. But for 241 these factors, it seems doubtful that we would be hearing the voices of the “new” judicial activism on these issues. Judges, after all, are the product social of and their political context. \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 55 15-JAN-18 9:53 been exonerated through DNA evidence of crimes for which many served decades in prison. .cc/UKK6-RVCE]. The first DNA exoneration in 1989. the United Additional States exonerations occurred followed in steadily twenty-five in thereafter, 2002. Since 2002, the reaching number of DNA a exonerations per year peak in the of United States has ranged between thirteen and twenty-three. Innocence Found: The New Revolution in American Criminal Justice Warren Court’s Role in the Criminal Procedure Revolution Procedure Criminal the in Role Court’s Warren https://www.law.umich.edu/special/exoneration/Documents/Exonera- tions_in_2015.pdf [https://perma.cc/U2WK-BTSD] (reporting tions in 1,733 the United States between 1989 exonera- and January 27, 2016). (2004) (“[P]ersonal perspectives will inevitably make their way into the decision- making process, and so will the social and political currents that shape those perspectives.”); Court. Warren the by wrought changes the by amazed be not will lawyers now from They will wonder how it could have been otherwise in the America of the sixties.”). “Evolving Standards of Decency” in Death Penalty Jurisprudence 39707-nys_72-2 Sheet No. 32 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 32 39707-nys_72-2 39707-nys_72-2 Sheet No. 32 Side B 01/15/2018 10:23:44 , , 283 See, OST , 74 RIMI- . P C (2009). OUNCIL ASH . C HERE W ES , : W ORWARD R L F ’ AT ATH N prosecution have 471, 501–02 (2014). Sarah Lucy Cooper ed. . NNOCENT I EV : A P 21 ( Stevens L. R TATES S There is no question that MERICA OWA I 279 A NITED 282 ONVICTING THE , 99 C U (Sept. 1, 2013), http://www.abajournal , ASES IN The Innocence Network: From Beginning to Brand- C is now part of our national legal cul- 280 ARRETT OURNAL 150–53 (2011). An Integrated Justice Model of Wrongful Convictions L. G CIENCE IN THE NNOCENCE S RONG I A.B.A. J W s, O RANDON G , Crime Labs Under the Microscope After a String of Shoddy, Suspect, B ORENSIC , at 167–70; Jon B. Gould, Julia Carrano, Richard A. Leo & Katie F 1465, 1468 (2011) (defining “innocence consciousness” as “the idea Marvin Zalman, Jacqueline McMurtrie, . Predicting Erroneous Convictions In a substantial portion of these cases, prosecutorial mis- See See See id. See, e.g. EV ONTROVERSIES IN 281 C ROSECUTIONS Although the overwhelming majority of the DNA exonerations 280. 279. 282. 281. 283. The 2009 Report by the National Research Council, which found that in . L. R P , Mark Hansen , LB TRENGTHENING 2014). S “innocence “innocence consciousness” ture. Scholarship on the causes of wrongful convictions has come of come has convictions wrongful of causes the on Scholarship ture. age over the past decade, revealing that, in a substantial number of these cases, the person later exonerated had pled guilty to the fense. of- demonstrated that federal prosecutors are not immune from many of the same problems. Moreover, brought about a major cultural shift in how we think about the falli- the innocence movement has bility of our adversarial system of criminal justice more broadly, involved state prosecutors, cases like the (Apr. 20, 2015), https://www.washingtonpost.com/local/crime/after-fbi-admits- overstating-forensic-hair-matches-focus-turns-to-cases/2015/04/20/a846aca8-e766- 11e4-9a6a-c1ab95a0600b_story.html?utm_term=.4dba4af6af6b [https://perma.cc/ L3R5-YPTF]. A and the extent to which prosecutors, faith, may even contribute to those the conviction acting of in the innocent. good This helps explain why judges shift may feel that they must take a more active role in monitoring prosecutors’ compliance with their discovery obligations and in seeking reform of the rules governing criminal dis- 242 serving every region of the NYU country. ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 56 15-JAN-18 9:53 NAL conduct conduct was a contributing factor. .com/magazine/article/crime_labs_under_the_microscope_after_a_string_of_ shoddy_suspect_and_fraudu [https://perma.cc/H77L-LVWD]; Spencer S. After FBI Hsu, Admits Overstating Forensic Hair Matches, Focus Turns to Cases numerous forensic sciences regularly used in criminal prosecutions were not scien- tifically valid, was an important landmark in this shift. flawed hair-match testimony in hundreds of criminal cases from 1972 to 2000. e.g. and Fraudulent Result The Report was followed by scandals in the crime laboratories of several states, and states, several of laboratories crime the in scandals by followed was Report The the FBI’s acknowledgment in April 2015 that its forensic examiners had given Hail-Jones, ing that innocent people are convicted in sufficiently large numbers as a result of systemic justice problems to require efforts to exonerate them, and to advance structural reforms to reduce such errors in the first place”). 39707-nys_72-2 Sheet No. 32 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 32 39707-nys_72-2 39707-nys_72-2 Sheet No. 33 Side A 01/15/2018 10:23:44 See EDERAL , Jed S. F See, e.g. note 284 (“[O]ur OUTHERN 1 (Dover Publica- : S AW EN (Nov. 20, 2014) (citing L supra M OOKS 286 B OMMON ONELY OF C Rakoff, . HE EV note 186, at 93–95 (citing impact of 58 L , trial fiasco of 2008 and 2009— Illini Books ed., Univ. of Illinois Press ., T note 294 and accompanying text. see also R supra N.Y. R , J , infra 247 ( ELTASON Stevens OLMES H J.W. P ENDELL ESEGREGATION W D , Lafler v. Cooper, 566 U.S. 156, 170 (2012) (“[C]riminal justice , Green & Yaroshefsky, LIVER CHOOL O This is particularly so as courts increasingly have S See, e.g. See, e.g. See 284 Why Innocent People Plead Guilty Accordingly, the rights to trial by jury and to discovery before (“[J]ust as the laws enacted by the legislature reflect the dominance of cer- The presence of a receptive audience in the Obama Adminis- 284. 285. 286. , 313 F.3d 49 (2d Cir. 2002). Judge Rakoff was the only federal judge ap- 285 UDGES AND the Department changed its policies to expand the scope of discov- Press Release, Dep’t of Justice, Office of Pub. Affairs, U.S. Departments of Justice innocence revolution). In a number of different vealed contexts, the Judge impact Rakoff of has the re- innocence revolution on his thinking. tration also may have led some judges to decide that the time right to was speak up, at least during the Obama years of 2009–16. The Obama Justice Department implemented many initiatives that were consistent with the expressed concerns of the “new” judicial activists. For example, Holder—in the wake of starting the in 2010, under ery regularly provided Attorney to the defense, improve training of prosecu- General J 1971) 2018]covery. THE “NEW” DISTRICT COURT ACTIVISM 243 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 57 15-JAN-18 9:53 tain values in the community, so do the decisions of judges. always It been so.”). is so today; it has acknowledged acknowledged that our criminal justice system, at the federal level as much as in the states, is als. overwhelmingly one of pleas, not tri- the conclusion of trial are Thus, the insufficient “new” to activist judges protect can the be reflecting viewed these innocent. larger as social channeling currents and and ways of criminal justice thinking policy that about surround them. Rakoff, States v. Quinones, 196 F. Supp. 2d 416 penalty (S.D.N.Y. unconstitutional in 2002) light of (holding undue risk federal of executing death an innocent person), rev’d pointed to the federal forensic science commission established during the Obama Administration, discussed further at and Commerce Name Experts to First-ever National Commission on Forensic Sci- ence (Jan. 10, 2014), https://www.justice.gov/opa/pr/us-departments-justice-and- commerce-name-experts-first-ever-national-commission-forensic [https://perma .cc/6GXS-BEYF] (listing appointees). studies documenting the number of innocent people who pled guilty); United tions 1991) (1881) (“The felt necessities of the time, the prevalent moral and polit- and moral prevalent the time, the of necessities felt (“The (1881) 1991) tions have fellow-men, their with share judges which prejudices the even . . . theories ical had a good deal more to do than the syllogism in determining the rules by which men should be governed.”); today is for the most part a system of Frye, pleas, 566 not a U.S. system 133, of trials.”); 143 Missouri (2012) v. (same); prosecutor alone.”). criminal justice system is almost exclusively a system of plea bargaining, negotiated behind close doors . . . [in which] [t]he outcome is very largely determined by the 39707-nys_72-2 Sheet No. 33 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 33 39707-nys_72-2 39707-nys_72-2 Sheet No. 33 Side B 01/15/2018 10:23:44 288 Cole USTICE J and expand and RIMINAL See supra C note 287 (recom- 291 Attorney General supra 290 and require greater require and EFORMING THE 287 : R Memorandum from James M. Cole, RIME C , 112th Cong. 1 (2012) (statement of James see also Memorandum from David W. Ogden, Deputy See MART ON . (Aug. 2013), https://www.justice.gov/sites/default/ , S Giglio USTICE ENTURY J and C ST T OF ’ , Memorandum from David W. Ogden, , Eric H. Holder, Jr., Remarks at the Annual Meeting of the Amer- the of Meeting Annual the at Remarks Jr., Holder, H. Eric , Brady EP 21 and in 2014 prohibiting the use of Section 851 sen- D Memorandum from Eric H. Holder, Jr., Att’y Gen., to the U.S. Att’ys Memorandum from Eric H. Holder, Jr., Att’y Gen., to Dep’t of Justice of Dep’t to Gen., Att’y Jr., Holder, H. Eric from Memorandum 289 See See, e.g. See See Ensuring that Federal Prosecutors Meet Discovery Obligations: Hearing on S. See, e.g. See, 289. 288. 290. 287. 291. YSTEM FOR THE Deputy Att’y Gen., Policy Concerning Electronic Recording 12, of 2014) Statements (requiring (May that federal officials electronically record individuals in interrogations federal of custody). documentation documentation of interrogations and meetings with witnesses. Holder committed the Department sentencing criminal of severity the reduce to proach, to a “Smart on Crime” ap- a criminal discovery coordinator, and increased and ongoing training programming requirements on Statement. discovery for all federal prosecutors. mending that, although not legally required, witness interviews should be memorialized by the interviewing agent); and Assistant Att’ys Gen. for the Criminal Div., Mandatory Department Policy Minimum on Sentences Charging and Recidivist Cases Enhancements (Aug. 12, in 2013); Memorandum Certain from Eric H. Drug Holder, Jr., Att’y Gen., Fed. Prosecutors, Department Policy to on Charging and Sentencing (May All 19, 2010). 2197 Before the S. Comm. on the Judiciary M. Cole, Deputy Att’y Gen.) [hereinafter Cole “Blue Book” Statement] issued to federal (describing prosecutors and so-called paralegals in 2011 which “compre- hensively covers the law, policy, and tions”). practice of The prosecutors’ disclosure Blue obliga- memoranda issued in 2010 Book by then-Deputy Attorney General David Ogden, which supplemented previous reminded prosecutors guidance, that Department policy including was to provide by required that several disclosure beyond Att’y Gen., for Dep’t Prosecutors, Guidance for Prosecutors Regarding Discovery Criminal (Jan. 4, 2010). The Department of policies disclosure all oversee and lead Justice to Coordinator Discovery Criminal National also appointed a high-level and practices for the Department, required each U.S. Attorney’s Office to appoint S 244tors on NYU ANNUAL their SURVEY OF discovery Starting AMERICANin 2010, Holder obligations, LAWalso started to shift department policy to more explicitly encourage prosecutors to [Vol. 72:187 exercise their discretion in charging, ultimately directing prosecutors in 2013 not to charge drug quantities sentences requiring unless the the defendant’s conduct sanctions, called harshest for such mandatory severe minimum \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 58 15-JAN-18 9:53 tencing enhancements to induce guilty pleas. files/ag/legacy/2013/08/12/smart-on-crime.pdf [https://perma.cc/STR6- WXFN]. In a speech delivered at the United States District Court for the Eastern Att’ys, Guidance Regarding § 851 Enhancements in 2014) Plea (making Negotiations clear that (Sept. a defendant’s 24, decision to go to trial ordinarily is not an appropriate reason to file a prior felony information). ican Bar Association’s House of .gov/iso/opa/ag/speeches/2013/ag-speech-130812.html Delegates (Aug. 12, 2013), [https://perma.cc/ http://www.justice RJ8H-2CKE]; 39707-nys_72-2 Sheet No. 33 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 33 39707-nys_72-2 39707-nys_72-2 Sheet No. 34 Side A 01/15/2018 10:23:44 , see In 297 , https://www.justice.gov/ causes embraced by his USTICE 292 , U.S. H.R., 1, 6 (Feb. 24, 2016) J T OF ’ And in September 2015, the De- EP 296 In January 2013, the Obama Adminis- U.S. D , U.S. to Commit Scientists and New Commission to Fix 293 S.E.C. Has a Message for Firms Not Used to Admitting Guilt (Feb. 15, 2013), https://www.washingtonpost.com/lo- OST In June 2013, the new Chair of the SEC, Mary Jo Mary SEC, the of Chair new the 2013, June In . P 294 In April 2014, the Department of Justice an- ASH , Memorandum from Eric H. Holder, Jr., Att’y Gen., to Heads of 295 W , Spencer S. Hsu, (June 21, 2013), http://www.nytimes.com/2013/06/22/business/secs- See, e.g. See Clemency Initiative See Hearing on the Fiscal Year 2017 Dep’t of Justice Budget Request Before the See IMES 292. 296. 295. James B. Stewart, 297. Memorandum from Sally Quillian Yates, Deputy Att’y Gen., to all DOJ 293. 294. Mary Jo White, Chair, SEC, Speech at the Council of Institutional Investors partment of Justice adopted a new policy, outlined in the so-called “Yates memo” issued by then Deputy Attorney General Sally Yates, to encourage prosecutors to seek greater accountability for corporate wrongdoing from the individuals who perpetrated it. nounced a clemency initiative to increase the prisoners number receiving clemency. of federal tration created a new National Commission on Forensic Science to prepare recommendations to the Attorney General on the science. forensic use of new-chief-promises-tougher-line-on-cases.html [https://perma.cc/K8BK-BDYS]; new-chief-promises-tougher-line-on-cases.html also Fall Conference: Deploying (describing new the policy). Full Enforcement Arsenal (Sept. 26, 2013) ment action. successor, successor, Loretta Lynch. White (formerly the United States Attorney in the Southern District of New York) announced a new policy for the SEC, henceforth requiring that in certain cases of “egregious misconduct,” defendants would be required to admit wrongdoing to settle an SEC enforce- N.Y. T District of New York during a celebration of Attorney that General Holder thanked Judge Gleeson for courts’ his leadership in establishing diversionary programs, such programs, and jested of Judge Gleeson’s influence: “I’m afraid of this You see man. him in the newspapers, he sends me letters. He and I believe in the same things, but I’m afraid of him.” Presentation of Alternatives to Incarceration in the Eastern District of New York 38 (Oct. 20, 2014) (transcript on file with author). 2018] opportunities for diversion and reentry, THE “NEW” DISTRICT COURT ACTIVISM 245 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 59 15-JAN-18 9:53 cal/crime/us-to-commit-scientists-and-new-commission-to-fix-forensic-science/ 2013/02/15/e11c31f8-77b3-11e2-8f84-3e4b513b1a13_story.html?utm_term=.9c83 fcb3292a [https://perma.cc/GW6S-UPL9]. pardon/clemency-initiative [https://perma.cc/GB6R-FULE]. Att’ys, Individual Accountability for Corporate Wrongdoing (Sept. 9, 2015). Dep’t of Justice Components and U.S. Att’ys, Consideration of Collateral quences in Conse- Rulemaking (Aug. 12, 2013). Subcomm. on Com., Just., Sci., and Related Agencies (statement of Loretta Lynch, Att’y Gen.); Loretta E. tional Lynch, Remarks Association at the of Na- Attorneys 2016), General https://www.justice.gov/opa/speech/attorney-general-loretta-e-lynch-deliv- Annual Winter Conference ers-remarks-national-association-attorneys-general (Feb. 23, [https://perma.cc/QF5B- 97EX]. Forensic Science 39707-nys_72-2 Sheet No. 34 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 34 39707-nys_72-2 39707-nys_72-2 Sheet No. 34 Side B 01/15/2018 10:23:44 . & note . U. L. CON W , E N supra , AW J. L , 110 ISINGER E , 28 What Do Federal District have been mem- (2015), https://www.ali 300 see also ROJECTS 298 , Proposed Official Draft 1962). The . ALI P NST I AW Memorandum for Advisory Comm. on Crimi- RESENT Opinions I Should Have Written P . L See M A ( AST AND ODE P , C . NST 3. Shifting Judicial Roles and Norms ENAL I P AW including the Model Penal Code; . L Stephen J. Choi, Mitu Gulati, & Eric A. Posner, ODEL M 299 521–22 (2011) (suggesting that most district judges seek elevation to A M See Id. Third, the “new” district court activism may reflect an evolving Even if national change was not likely, judges may have 298. 299. 300. . 518, . 423, 432 (2016) (noting that if a judge wants to move up the judicial ladder, RG EV R O policy-making processes, wield appellate power, and serve in quasi- legislative roles. For example, since the 1920s and 30s, district court judges have participated projects, in law reform efforts through ALI he or she “has every incentive” to avoid controversy); model of the judicial role with roots that go back decades. That is, in a variety of contexts, district court judges today participate in Judges Want? An Analysis of Publications, Citations, and Reversals ton appointees’ reaching their second decade which on point the some bench, judges’ by Others views may have decided may that they had have accumulated sufficient ex- shifted perience or to speak coalesced. with authority. Moreover, after passing the of dec- hope relinquished have may some court, district the on mark ade promotion, taken senior status, or decided to leave the bench, thus liberating them to spark controversy. 246 sum, during the Obama Administration, judges may have NYUfelt that there ANNUAL was a rare SURVEY historical moment to OFbe seized when possible—by AMERICANchange was legislation, LAW executive action, thereof—and that or their voices could some help [Vol. 72:187 bring it combination to fruition. thought that the Obama-appointed United States Attorneys in their districts—who enjoyed greater Holder memoranda charging than discretion prior Clin- the of many with coincided also years Obama the Finally, calls. under generations—would the heed their \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 60 15-JAN-18 9:53 appellate courts); Nancy Gertner, American Law Institute proposed preparation of a model penal code prior to 1931 and drafting began in the 1950s. nal Law, The Proposal to Prepare a Model Penal Code (June 1951). istration, which appeared to have an “age test for its judicial appointees”). 154 at, 226–27 (describing Judge Rakoff’s “radicalization” upon realizing that, at age 65, he would never be appointed to the appellate court by the Obama Admin- .org/media/filer_public/f5/6a/f56af0aa-719e-4cd8-b293-baccecc1163b/past_pre sent_aliprojects.pdf [https://perma.cc/9QRW-THCZ]. ALI produced four Restatements of drafts the Law of in 1923: Agency, Torts. Conflict of Laws, Contracts, and 39707-nys_72-2 Sheet No. 34 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 34 39707-nys_72-2 39707-nys_72-2 Sheet No. 35 Side A 01/15/2018 10:23:44 . 304 NN U.S. ROCE- , A EPORT- P N See ’ R IVIL OMM C C 1125, 1133–34 . EV HAIRS AND ULES OF and the Judicial C R . L. R 301 W ON 28 U.S.C. § 331 (2012). ENTENCING Given all of these ac- . N , http://www.uscourts.gov/ See 305 ROCEDURE OMM , http://www.americanbar.org/ U.S. S , 107 P N OURTS C ’ The Chief Justice, The Appointment of SS A U.S. C AR DVISORY , A . B , M RACTICE AND A P , 306 James E. Pfander, ULES OF See As of at least 1948, federal district court judges court district federal 1948, least at of As R 303 See Meeting Minutes and have participated in the ABA Criminal Justice 302 Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837 28 U.S.C. § 331 (1948). The Judicial Conference has numerous sub- Committee Membership Selection OMMITTEES ON See See Criminal Justice Standards C . , Id Federal district court judges also may be following the example (Dec. 7, 1939), http://www.uscourts.gov/sites/default/files/fr_import/ 302. 301. The Supreme Court established a federal rules advisory committee in 306. I thank Gabriel “Jack” Chin for this point. 304. 28 USC § 292(a), (d) (1948). 305. 303. (2015), http://www.ussc.gov/about/annual-report/archive/annual-report- . (2016), http://www.uscourts.gov/sites/default/files/committee-roster.pdf (2016), OURTS EP R ERS C DURE 2015 [https://perma.cc/RDA5-KMZK]. Conference; ject-area committees, including a Committee on Criminal Law and a on Rules of Committee Practice and Procedure. The Chief Justice appoints judges to the committees, which in turn are responsible for proposing policy positions on behalf of the Judicial Conference. Inferior Officers, and the “Court of Law” Requirement down by someone else. [https://perma.cc/5KU4-W84X]. have sat by designation on the United States Courts of Appeals. tivities, perhaps it is not surprising that at least some district judges have come to view themselves as responsible for more than finding facts, presiding over the occasional trial, and applying law handed set by federal appellate judges. This includes not only policy-mak- June 1935. Standards Project. Standards 2018] bers of the Federal Rules Advisory Committees THE “NEW” DISTRICT COURT ACTIVISMDistrict court judges also have been members of the U.S. Sentenc- ing Commission since its creation in 1984. 247 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 61 15-JAN-18 9:53 CV12-1939-min.pdf [https://perma.cc/NY2S-8CHF]. There are currently four thirty- district court Judges on the Federal Rules Advisory Committees. groups/criminal_justice/standards.html groups/criminal_justice/standards.html [https://perma.cc/DF85-BMS2] (noting that the initial volumes of the ABA Criminal Justice Standards were published 1968). in (1987). The Commission “was created by the Sentencing Reform Act provisions of the Comprehensive Crime Control Act of 1984.” (2013). These recommendations are presented to the Judicial Conference’s governing board, which must approve them before they become official policy. governing The board is composed of twenty-seven federal judges, including the Chief Judges of each of the judicial circuits and the Court of one International Trade, district and court judge from each of the Circuits. rules-policies/about-rulemaking-process/committee-membership-selection [https://perma.cc/5QBA-AQK7]. A district judge served as a member of the advisory board in 1939. While the Chief Judges serve for the length court of representatives their serve terms for as terms Chief, not the less district years. than three but no more than five 39707-nys_72-2 Sheet No. 35 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 35 39707-nys_72-2 39707-nys_72-2 Sheet No. 35 Side B 01/15/2018 10:23:44 , 21 note Politi- (Jan. N.Y.L. EFORM R The ex- IMES supra , 51 311 Civility Among N.Y. T RISIS AND , : C Finkelman, some of which are see The Role of Dissenting Opin- OURTS 309 C Ethical Judicial Opinion Writing EDERAL but also the length and schol- F or their fellow judges. 307 HE Discovery from the Trenches: The Future of 310 , T 74, 85–86 (2013) (discussing retreat organized OSNER A. P note 222 at 548 (“The increase in the quality and quan- Seeking Better Legal Help for Immigrants ISCOURSE The opinions’ personal tone and the frankness . D 237, 254 (2008) (“[B]etween 1960 and 1980, the average supra EV . 1 (2010) (on the history and significance of opinion writing ICHARD 308 R EV R , Laurie L. Levenson, (noting that judges who “disagree with Congress’s choice . . . are , , Yates v. United States, 135 S. Ct. 1074, 1101 (2015) (Kagan, J., , Utah v. Strieff, 136 S. Ct. 2056, 2065–71 (2016) (Sotomayor, J., THICS E . L. R Posner, . 907 (2007) (tracing the rhetorical excesses of Justice Scalia since his INN See, e.g. See, e.g. See, e.g. See See, e.g. EGAL EV M see also id. 307. 310. 309. 308. 311. . J. L . L. R , 95 EO CH Brady, 60 UCLA L. S arly aspirations of some of the “new” activist opinions, which reflect a shift in judicial writing styles that is traceable Supreme Court. all the way to the explicitly explicitly disdainful of Congress with which they criticize fellow institutional actors also are tent consis- with opinions by higher-ranked judges, 232–33 (1985) (noting the “increasingly common manifestation of excessive judicial self-assertion” in the leagues “abuse—often . shrill, . . sometimes [which] nasty—of figure concurring opinions but in majority ever opinions as one’s well, now that it more is the fashion for col- prominently not only the in author of dissenting the majority and opinion, usually in footnotes, Newman, A. Stephen to opinion)”); concurring a even sometimes (and opinion attack the dissenting cal Advocacy on the Supreme Court: The Damaging Rhetoric of Antonin Scalia practices in the United States, as distinct from civil law countries). G 248ing efforts at the courthouse-level, NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 62 15-JAN-18 9:53 average number of footnotes increased from 3.8 to 7; and the average number of citations rose from 12.4 to 24.7.”). length of federal court of appeals opinions increased from 2863 to 4020 words; the by the Ninth Circuit to repair the relationship between U.S. Attorneys and Federal Defenders); Kirk Semple, 28, 2014), https://www.nytimes.com/2014/01/29/nyregion/service-program-will- recruit-law-school-graduates-to-help-represent-immigrants.html [https://perma Chief Katzmann, A. Robert by spearheaded initiative (describing .cc/V6DK-Z9AW] Judge of the U.S. Court of Appeals for the Second Circuit, to provide representation for immigrants facing deportation). dissenting) (describing a statutory provision as “bad law” which “is unfortunately not an outlier, but an code”); emblem of a deeper pathology perfectly entitled to in say so—in lectures, the in law review articles, and federal even in dicta”). criminal dissenting) (speaking in an intensely personal tone about the indignity and severe consequences of the police stops authorized by the majority opinion). On the history of opinion writing practices at the Supreme Court, 606–07at 221 discouraged which Court, Supreme the of practices early (discussing separate opinion writing); Hon. Ruth Bader Ginsburg, ions appointment to the Supreme Court in 1986); William G. Ross, tity of the Supreme Court’s staff (mainly law clerks) in recent decades, combined with the appointment to the Court mainly of former judges, and the steep reduc- to Court modern the enabled has hears, Court the that cases of number the in tion produce opinions that have a glossier patina of legal scholarship than the opinions of their predecessors.”); Gerald Lebovits et al., 39707-nys_72-2 Sheet No. 35 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 35 39707-nys_72-2 39707-nys_72-2 Sheet No. 36 Side A 01/15/2018 10:23:44 . , , EV (C- . L. R (Dec. 2, LA F (CBS News IMES , 51 (June 24, 2016), (Sept. 12, 2015), N.Y. T , LATE L.J. S L ’ , AT Inside the Supreme Court N , (Sept. 19, 2016), http://www . J. T S even regarding controversial le- ALL (Nov. 30, 2016), http://www.national- W Judicial Ethics: The Less-Often Asked Questions Asked Less-Often The Ethics: Judicial 312 , L.J. L ’ AT Judge Posner Slams ‘Stupid’ Decisions by Chief Justice N , 60 Minutes: The Execution of Joseph Wood Since judges operate within a set of norms Justice Scalia’s Majoritarian Theocracy The Academy is Out of Its Depth 313 , Tony Mauro, , Andrew L. Kaufman, Kaufman, L. Andrew , 851, 867 (1989) (expressing concern about “the increasing num- . Ruth Bader Ginsburg, No Fan of Donald Trump, Critiques Latest Term EV (July 10, 2016), http://www.nytimes.com/2016/07/11/us/politics/ See, e.g. See, e.g. See, . L. R Q&A: Justice Breyer’s Interview With The NLJ IMES ASH 312. 313. W gal or political issues. http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/ 2016/supreme_court_breakfast_table_for_june_2016/law_school_professors_ need_more_practical_experience.html [https://perma.cc/CU5F-8VU6] (criticizing law school hiring practices, the uniformity of the Supreme Court Justices, and the application of the Constitution to modern times); SPAN television broadcast Feb. 3, 2016) (interviewing Chief Justice John Roberts regarding his view that the current Posner A. Richard Senate); the of divisiveness political the to Supreme due well” functioning Court nomination “process is not & Eric J. Segall, Opinion, opposition to the use of lethal injection in administering the death penalty); Tony Mauro, 2015), http://www.nytimes.com/2015/12/03/opinion/justice-scalias- majoritarian-theocracy.html?smid=tw-share&_r=5&mtrref=undefined&gwh= B211950D6FDB644BDFC8647CB42961E5&gwt=pay&assetType=opinion [https:// perma.cc/54HF-WEU3] (criticizing former Scalia’s views on gay Supreme rights); Court television broadcast Nov. Justice 29, 2015) (interviewing Judge Antonin Alex Kozinski about his Roberts, ‘Silly” Stances By Scalia N.Y. T 2018]are also judges activist “new” the of writings and speeches trajudicial consistent with the examples set by members of the Supreme Court THE “NEW” DISTRICT COURT ACTIVISMand the Courts of Appeals, many of whom have licly-facing embraced version a of their pub- role, 249 Judges: Charting the Bounds of Proper Criticism by Judges of Other Judges 957, 958 (1999) (noting the “apparent increase starting in with those acerbity of members in of written the U.S. opinions, Supreme Court”). \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 63 15-JAN-18 9:53 ber of articles and speeches by judges, especially Supreme which Court they Justices discuss . all . . sorts in of issues discuss that also the seem views and likely foibles of to their colleagues”). come before them and lawjournal.com/id=1202773466396/Judge-Posner-Slams-Stupid-Decisions-by- Chief-Justice-Roberts-Silly-Stances-by-Scalia [https://perma.cc/T445-S56N] cussing (dis- a video of Judge Posner criticizing certain Supreme Court how Chief decisions Justice Roberts manages and the federal judiciary); Alex Kozinski, Opinion, Rejecting Voodoo Science in the Courtroom 64 .wsj.com/articles/rejecting-voodoo-science-in-the-courtroom-1474328199 .wsj.com/articles/rejecting-voodoo-science-in-the-courtroom-1474328199 [https:/ /perma.cc/TDU2-DWYJ] (recommending that the court system adopt standards to validate forensic evidence given that current methods are generally unreliable); Adam Liptak, http://www.nationallawjournal.com/id=1202736925982/QampA-Justice-Breyers- Interview-With-The-NLJ [https://perma.cc/6FBX-FMAJ] Breyer about (interviewing issues including capital punishment). Justice ruth-bader-ginsburg-no-fan-of-donald-trump-critiques-latest-term.html ruth-bader-ginsburg-no-fan-of-donald-trump-critiques-latest-term.html [https:// perma.cc/P5BJ-PBLR] (quoting Justice Ginsburg criticizing then-presidential candidate Donald Trump, chastising the Senate’s failure to act on President Obama’s Supreme Court nominee, and commenting Hon. on Richard specific A. Posner, Supreme Court cases); 39707-nys_72-2 Sheet No. 36 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 36 39707-nys_72-2 39707-nys_72-2 Sheet No. 36 Side B 01/15/2018 10:23:44 316 315 . L.J. 165 . R. MORY E ENT A Trial Judge’s . S , 58 sua sponte ED F 28 This increased ease 317 257, 262 (H.P. Lee ed., 2011) 1281, 1282 (1952) (“[W]hat transpires Charles E. Wyzanski, Jr., . See ERSPECTIVE EV P The Criticism and Speech of Judges in the United at 1303. . L. R Id. ARV H note 298, at 438 (noting that the Sentencing Commis- An Intellectual History of Judicial Activism OMPARATIVE , 65 C supra 4. The New Media Environment 314 Craig Green, Charles Gardner Geyh, Gertner, UDICIARIES IN See See See J in Fourth, the new media environment, and the extent to which it which to extent the and environment, media new the Fourth, , Judicial Discretion in Federal Sentencing—Real of Imagined? 314. 315. 317. 316. Since some district court judges might find the activities of other district of access to the public domain may be enough judges to to persuade speak or some publish where previously they might not. York suggests—the increased availability of judges’ opinions, facilitates facilitates dissemination of information about court activism, may be playing the a role in fueling “new” its rise. Although a district judge’s closest peers still may wield the most influence—as the con- centration of “new” activist decisions in the Eastern District of New role, following whatever principles they find applicable, and mimicking whatever role models they find appropriate. Over time, judges’ ideas about judging morph to accommodate lived experience, and so the wheel turns.”). statements, and writings may be making it easier for litigants to find examples they can cite when asking other judges to follow suit, or inspiring some judges to engage Judges in who seek to influence similar public policy—even if activity only indirectly by cultivating public opinion—now have many more means to get their message out than in the more limited media environment of the past. They are not dependent upon established media organizations or on official government publications. judicial of views own their applying by job their do judges (“New (2009) 1225 1195, 250that are fluid and indeterminate, there is ample room for influence NYUby ANNUALother judges. SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 64 15-JAN-18 9:53 States in trial courts is not readily available. One man knows the practices only of his own and perhaps a few other courts.”). Nevertheless, he noted that trial court practices, if they “win approval and imitation by other similarly circumstanced courts,” over time take on the quality of law. (“[T]he Internet has enabled information about judicial decisions to be communi- cated quickly and unfiltered. Controversial decisions by remote courts that would communi- be can media traditional through attention national to come have never cated instantaneously to a worldwide audience.”). court judges most influential, it is particularly significant that such information is increasingly accessible. Writing in 1952, Judge Charles Wyzanski of the federal Dis- trict Court in Massachusetts noted the limitations on judges’ ability to learn about the practices of judges in other districts. (2016) (noting that the Sentencing Commission web site only publishes proposals for new Guidelines, not proposals for new programs like the “[i]mportant pre-trial diversion and reentry programs [that] are cropping up around the country”). sion “only posts the decisions of the appellate courts on its website”); Nancy Gert- ner, Freedom and Responsibility 39707-nys_72-2 Sheet No. 36 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 36 39707-nys_72-2 39707-nys_72-2 Sheet No. 37 Side A 01/15/2018 10:23:44 , CNN (Apr. 27. , http://www.uscourts OURTS U.S. C , No. 16-1436 (U.S. June 26, 2017) , * * * (as federal courts always are) and that At the same time, the first few months 320 319 Trump Again Thunders Against Judiciary Justice Department to End Partnership With Forensic Science no matter how solid their legal reasoning. The new The reasoning. legal their solid how matter no vacated and remanded as moot , Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 591–92 , Memorandum from Jeffrey Sessions, Att’y Gen., to All Fed. Pros- 321 David Wright, See, e.g. See See, e.g. there may be a temptation for judges to speak out further. See Judgeship Appointments by President 318 In sum, there are a variety of plausible reasons for the “new” , UPI (Apr. 10, 2017), http://www.upi.com/Top_News/US/2017/04/10/Jus- 318. 319. President Obama appointed 270 judges to the United States District 321. 320. district court activism of the past decade, some of which tinue to be present in the years to come. As the new Administration will con- begins to implement its own criminal justice some cases policy reversing initiatives, favored initiatives in of the Obama Administra- tion, their legitimacy will be attacked whenever wishes, dent’s they thwart the Presi- of the Trump Administration suggest that called upon federal for the judges foreseeable future will to adjudicate be challenges to Executive branch policies 2018] THE “NEW” DISTRICT COURT ACTIVISM 251 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 65 15-JAN-18 9:53 for some of the Obama appointees who will soon be entering their second decade of service. This may be particularly so not herein only as “new” for activist judges those who remain already on the bench, identified but also Panel tice-Department-to-end-partnership-with-forensic-science-panel/6451491836304/ an- Sessions Jeff General Attorney that (reporting [https://perma.cc/8CHN-Y3BY] nounced that the Justice Department would not National Commission renew on its Forensic Science). partnership with the Courts. ecutors, Department Charging and Sentencing Policy (May 10, 2017) (rescinding Obama-era policies and instructing prosecutors to “charge and serious, pursue the readily most provable offense,” which “[b]y carry definition,” the includes most “those substantial that guidelines sentences”); sentence, Allen including Cone, mandatory minimum temporary restraining order on Executive Order 13769, as it would “substantially injure” plaintiffs if put into effect); Cty. of Santa Clara v. Trump, No. 17-CV-00485, 2017 WL 1459081, at *23 (N.D. Cal. Apr. 25, 2017) (Orrick, J.) (enjoining enforcement of Executive Order 13768, “Enhancing Public Safety in the United States,” Interior which purports of to the prevent “sanctuary jurisdictions,” considering it “unconstitutionally coercive”). .gov/sites/default/files/apptsbypres.pdf .gov/sites/default/files/apptsbypres.pdf [https://perma.cc/TG4G-XJ7R]. (4th Cir. 2017), (upholding a nationwide injunction of President Trump’s Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the part United because States,” of in ample evidence that the government’s actions legitimate” were based on statements not suggesting a “facially Muslim-ban); Washington v. Trump, 847 F.3d 1151, 1169 (9th Cir. 2017) (denying the government’s motion to stay the 2017), http://www.cnn.com/2017/04/26/politics/trump-tweets-ninth-circuit- sanctuary-cities-order/index.html [https://perma.cc/TSN6-HLEV] Donald (“President Trump is again attacking the federal judiciary, this time denouncing a 39707-nys_72-2 Sheet No. 37 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 37 39707-nys_72-2 39707-nys_72-2 Sheet No. 37 Side B 01/15/2018 10:23:44 U.S. , (Feb. 5, (Feb. 4, , which es- NTREPRENEUR- WITTER WITTER E T T so-called judge UDICIAL 5 (1997) (defining an See Judicial Vacancies , J DEAS ATES I America’s Trial Court Judges: Our L. C (Apr. 26, 2017), https://www.wash- Cognizant of this new political OST 322 YNTHIA IV. . P ARKETPLACE OF These are roles that appellate judges ASH & C ACTIVISM M 323 W (May 6, 2016), https://www.nytimes.com/2016/ , NTOSH IMES I C UDGE IN J All the Times Trump Personally Attacked Judges—and Why His , Donald J. Trump, @realDonaldTrump, N.Y. T V. M , Shira A. Scheindlin, Opinion, See see, e.g. AYNE W OLE OF THE A. The Value of the “New” District Court Activism EVALUATING EVALUATING THE “NEW” DISTRICT COURT See R , http://www.uscourts.gov/judges-judgeships/judicial-vacancies [https:// HE The “new” district court activism is valuable in many respects. 322. This President may appoint as many as 130 district court judges over the 323. : T OURTS First, through their judicial quasi-legislative activity, these judges opinions, have been contributing to the extrajudicial speech, and marketplace of ideas and branches providing of accountability government in to the spirit the of from ages past and present. “entrepreneurial other judges” SHIP C environment, environment, the next section analyzes the value and “new” risks district of court activism. the sentially takes law-enforcement away from our country, is overturned!”) (emphasis ridiculous added). and will be next four years. have played for generations opinions) (often and in they dissenting have or long been concurring celebrated in our legal cul- perma.cc/MY55-WQMX]. ruling that halted implementation of an executive order targeting ‘sanctuary’ cities.”); Kristine Phillips, Tirades Are ‘Worse Than Wrong’ 252 President also will have NYU the opportunity new ANNUAL federal district to court judges. appoint SURVEY hundreds of OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 66 15-JAN-18 9:53 Front Line for Justice entrepreneurial judge as “one who is alert to the opportunity for innovation, who is willing to invest the resources and assume the velop risks necessary a to genuinely offer unique and de- legal concept, and written who word to must undertake change”) strategically (emphasis omitted). employ the perma.cc/9C94-YG79]. As of October 12, 2017, there were 120 District vacancies Courts and twenty-one on the Courts on of Appeals. the tacked-judges-and-why-his-tirades-are-worse-than-wrong/?utm_term=.3b983eeb3d dd [https://perma.cc/K24A-HBUT] (listing the incidents where tacked Trump judges); has at- 05/07/opinion/americas-trial-court-judges-our-front-line-for-justice.html [https:// ingtonpost.com/news/the-fix/wp/2017/04/26/all-the-times-trump-personally-at- 2017, 5:12 AM), https://twitter.com/realDonaldTrump/status/82786731105497 4976 [https://perma.cc/3JPJ-3C7G] (“The opinion of this 2017, 12:39 PM), https://twitter.com/realDonaldTrump/status/82834220217466 8800 [https://perma.cc/9D6G-HTGB] (“Just cannot believe a our country in such peril. If something judge happens blame him and court system. Peo- would put ple pouring in. Bad!”); Donald J. Trump, @realDonaldTrump, 39707-nys_72-2 Sheet No. 37 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 37 39707-nys_72-2 39707-nys_72-2 Sheet No. 38 Side A 01/15/2018 10:23:44 L.J. See Federal ASTINGS H , 37 at 144 (separate opin- id. . 133, 133–34 (1990) (dis- EV Even when a case is ap- . L. R 325 ASH , http://www.uscourts.gov/statistics-re- In Defense of Dissents W , 65 OURTS U.S. C , , William J. Brennan, Jr., Remarks on Writing Separately See, e.g. When it comes to criminal justice issues, district court 324 324. 325. For example, in the twelve-month period ending March 31, 2015, there judgment of other institutional actors can shape future behavior. pealed, review is often limited and invariably will be based on a cold a on based be will invariably and limited often is review pealed, record that captures only a fraction of what transpired below. cause Be- many trial judges are drawn from the legal community over which they preside, and frequently are alumni of the local prosecutor’s office, they are well situated the on been has who judge trial a when Thus, credibility. with speak to assess issues in context and bench many years describes counters, the a judge speaks with problem a special based expertise that we on heed. The same is should true when the judge identifies an innovation that repeated en- could address the problem. Even when the judges are powerless to effect any change on their own, calling out the folly or errors of criticism of legislative judgments that require us to wrong”); United States v. uphold Then, 56 F.3d results 464, 466 n.1 we (2d Cir. 1995) think (Calabresi, J., are concurring) (“The tradition of courts engaging in dialogue with legislatures is too well-established in this and other courts to disregard.”). were 10,654 criminal appeals filed in the federal courts of appeals, out of a total of criminal 80,081 were there period, same the During (19.64%). filed appeals 54,244 filings in the district courts, out of a total of 361,689 Judicial filings Caseload Statistics (22.14%). 2015 cussing that “[s]eparate opinions in intermediate appellate alert courts function,” can for serve reviewing an courts, charting where appeal is of right or signaling “that the case “alternative is troubling and perhaps worthy grounds of decision” of a place on its calendar” where review is discretionary); ions also can serve “as a call for rectification by non-judicial hands”) (internal citations omitted); United States (Calabresi, v. J., concurring) Ingram, (“[W]e judges 721 have a F.3d right—a duty 35, even—to express 43 n.9 (2d Cir. 2013) 427, 435 (1986) (“Dissents contribute to the integrity of the process, not directing only by attention but, . . . also by contributing to the marketplace of competing ideas.”); Ruth Bader to perceived Ginsburg, difficulties with the majority’s opinion, 2018]ture. THE “NEW” DISTRICT COURT ACTIVISM 253 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 67 15-JAN-18 9:53 are never heard on appeal, trial judges are the only judges who will interact with the facts and the parties. judges judges are, in many ways, better situated than any other type of federal judge to contribute new ideas and informed insights the on system is how working and could be improved. In a world in which the overwhelming majority of criminal cases are resolved by a guilty plea—thereby limiting any judicial judge involvement is still more likely at than any other all—thejudge to glean meaningful trial information from each case and cumulatively to sues, including those with a local twist. Because many criminal cases spot systemic is- ports/federal-judicial-caseload-statistics-2015 [https://perma.cc/5XUB-YAAZ]. 39707-nys_72-2 Sheet No. 38 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 38 39707-nys_72-2 39707-nys_72-2 Sheet No. 38 Side B 01/15/2018 10:23:44 , 32 The 327 Judicial Speech and note 109, at 529–30 331 and otherwise “par- supra The Structure of Federal Public 328 335, 358–59 (2017) (describ- . Id. EV Canon 4. Stephen Reinhart, . L. R acknowledges the special value UDGES 805, 806–07 (1995) (suggesting that judges 329 . see also ORNELL , David E. Patton, EV C The Ascent of the Administrative State and the Demise U.S. J See, e.g. , 102 As former Judge Nancy Gertner has written, 1332, 1359 (2008) (noting “the powerful groups uni- . To Speak or Not To Speak: Musings on Judicial Silence . L.A. L. R EV 326 OY L ONDUCT FOR . L. R C note 3. , Rachel Barkow, , 28 . 1147, 1160 (2004); ARV EV H Canon 4(A)(1). commentary to Canon 4. Thus, judges are “encouraged” to engage in ODE OF C See, e.g. Id. Id. See supra It was this Commentary that Judge Rakoff cited in his L. R , 121 330 Second, the “new” judicial activism in fact has achieved mean- It is particularly important that Article III judges, who enjoy 326. 328. 329. 330. 327. Nancy Gertner, 331. OFSTRA lecture, and teach” on law-related subjects, Code of Conduct for United States Judges, which expressly allows judges to engage in “extrajudicial activities,” and to “speak, write, that judges brings to law reform efforts, “including revising substantive and procedural law and improving criminal and tice.” juvenile jus- Defense: A Call for Independence this part of the judicial role—i.e., “[e]ducation of officials”—isthe public so and important that arguably it should avocational “move aspect of from the job an to part of its central mission.” ticipate in other activities concerning the law, the legal system, and the administration of justice,” ingful reform in numerous tangible ways. For discovery rules example, and orders the discussed above local have changed the practices in scores of districts, providing criminal defendants with earlier and more meaningful discovery than they are entitled to under life tenure, engage with issues affecting groups politically like criminal defendants, disempowered because no other institutional actor is likely to do so. of Mercy H 254 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 68 15-JAN-18 9:53 should be able to say “to the general public legal that elite”). which are willing to say to the Harvard Law School speech when he suggested that judges “have a special duty to be heard” on mass incarceration. ing dramatic cuts in staffing that public make under the defender federal budget organizations cuts known were as “sequestration” forced in 2013). to the Open Judiciary formly line up in favor of greater government power and harsher penalties” such that the “[t]he process that produces criminal laws is far example less the one balanced” producing administrative law); than Stuntz, for (noting the historical absence of private intermediaries to “monitor the [criminal] law’s content and mobilize interested voters” and the dominant influence on legislators of prosecutors and police). Defense lawyers, particularly public defenders or appointed attorneys who are constantly under threat of losing funding, are unable to play this role as effectively. such activities, “either independently or through a bar association, judicial conference, or other organization dedicated to the law.” 39707-nys_72-2 Sheet No. 38 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 38 39707-nys_72-2 39707-nys_72-2 Sheet No. 39 Side A 01/15/2018 10:23:44 U.S. , (filed 335 Pretrial Services— note 104. the Eastern District opinion, have had a United States v. Dossie supra This is immediately im- has spawned a wave of ap- 332 Nesbeth Nesbeth, The same is true regarding 336 Holloway see also Table H-1. U.S. District Courts—PretrialDistrict U.S. H-1. Table also see , , http://www.uscourts.gov/statistics-reports/ supra OURTS Part II.A.3; Part and Judge Block’s Like the discovery innovations, these programs U.S. C , 334 333 Part II.B.3. notes 140–43 and accompanying text. Telephone Interview with Eileen Kelly, decision, See supra supra generally See See supra See , http://www.uscourts.gov/sites/default/files/data_tables/jb_na_pre_ Other effects are harder to determine with precision, but the 332. 333. 334. 335. 336. For example, Attorney General Holder restricted the charging of the OURTS Judicial Business 2016 C restart their lives. plications by similarly situated defendants across the country, some of which have been granted. Following of New York Probation quences analysis Office in all subsequent has Pre-Sentence Reports. included a collateral conse- pactful in those districts. It also holds the potential to be impactful on a broader scale, especially if prosecutors in those districts the with more demanding rules grow comfortable that not these adversely rules affect do their ability to do larly, the local diversionary programs their that judges have developed in jobs effectively. Simi- their districts have benefited hundreds of individuals, giving them the opportunity to gain treatment rather than incarceration and changes of policy (at least as formally announced) at DOJ and the have the potential for even wider impact if they are smaller successful. ways, innovations In by individual judges like Judge Gleeson’s Holloway most overt criticisms—including the fil- and sentences, minimum mandatory carrying crimes of charging new policies on ing discovery, of prior felony informations. concrete effect. As noted circumstantial evidence of them is compelling. timing For of example, important policy the changes by the Obama Department Justice of correlate strongly with some of the “new” judicial activists’ Services Cases Activated During the 12-Month Period Ending September 30, 2016 0930.2016.pdf [https://perma.cc/YC2Y-UL8Z] (listing 598 total pretrial diversion cases by circuit and district court during calendar year 2016); 2018] federal law, a goal that many have long believed fairness will and reliability increase of THE the criminal “NEW” trials. DISTRICT COURT ACTIVISM 255 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 69 15-JAN-18 9:53 and 2016). harshest mandatory minimum sentences on August 12, 2013, less after Judge Gleeson expressly called on than him to do so in one year March 30, 2012). Holder then clarified that a defendant’s decision to was not go a valid reason to to file trial a prior felony information in a memo dated Septem- ber 24, 2014, less than one year after Judge Gleeson excoriated that practice in his Kupa decision, filed on October 9, 2013. pretrial-services-judicial-business-2016 [https://perma.cc/LGE2-FDKH] (providing a summary of pretrial services cases, including diversion cases, between 2012 39707-nys_72-2 Sheet No. 39 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 39 39707-nys_72-2 39707-nys_72-2 Sheet No. 39 Side B 01/15/2018 10:23:44 Bank UIDE- , 103 G note 295 supra Admit It! Corporate MENDMENTS TO THE ., A N ’ Jason E. Siegel, OMM C But see ENTENCING As discussed above in Part III.B.2, broader Will Goldman Plead to a Lesser Charge? Beware the ‘Rakoff the Beware Charge? Lesser a to Plead Goldman Will 338 U.S. S (May 28, 2010, 2:46 PM), https://blogs.wsj.com/deals/ LOG , Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372 . J. B http://www.ussc.gov/guidelines/amendments http://www.ussc.gov/guidelines/amendments [https://perma.cc/ T , S See, e.g. ); Michael Corkery, Michael ); ALL 433, 439 (2015) (noting “at least seven other federal judges questioned Of course, some of these changes could reflect correlation ANUAL W , M 337 337. 338. For example, although numerous commentators have pointed to a . L.J. EO LINES Effect’ cultural shifts have been at work, which may tions explain by fully Congress the or Executive ac- branch actors, or alternatively why they were particularly receptive to the “new” judicial activists’ calls. But it is hard not to come away with the impression that the “new” these on needle the moving for credit some deserve activists judicial issues. or refused to approve SEC settlements” following Judge Rakoff’s decision in America of fenses by producing an 18-to-1, instead quantity ratio, and eliminating mandatory minimum of sentences for the simple pos- 100-to-1, crack-to-powder ratio drug session of crack cocaine); (reducing the sentencing disparity between crack cocaine and powder cocaine of- G atic. 256 SEC regarding NYU corporate though ANNUAL the and SURVEY “new” activist OF judges white-collar were cases AMERICAN reversed (for example, prosecutions. when in they LAW refused some to approve Even of a DPA), no these one likes to be embarrassed. The judges’ opinions and [Vol. extrajudicial ac- 72:187 tivity also may have emboldened some individual prosecutors and regulators to explore new During and the past tougher decade, both enforcement Congress and strategies. Commission also took steps to ameliorate some of the issues related the U.S. Sentencing to sentencing identified by the “new” judicial activists as problem- \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 70 15-JAN-18 9:53 2010/05/28/will-goldman-plead-to-a-lesser-charge-beware-the-rakoff-effect [https://perma.cc/NAU5-7YAH] (describing the possibility of the “Rakoff Effect” on Goldman Sachs Group’s settlement negotiations with the SEC). that could strengthen the (quoting SEC’s SEC enforcement Chair Mary hand.” Jo Stewart, White). Admissions of Wrongdoing in SEC Settlements: Evaluating Collateral Estoppel Effects V2DX-AQJ4] (amending the Sentencing Guidelines to broaden compassionate release requirements for prisoners, adjust monetary penalty tables for inflation, provide additional guidance as to whether a mitigating role adjustment should apply, and reduce the cumulative impact of a defendant’s prior sentences). “Rakoff effect” to explain the SEC’s change in policy to require that admit wrongdoers misconduct more frequently, SEC Judge Rakoff’s Chair decisions were Mary responsible for the Jo shift. She White stated, “Judge Rakoff disclaimed and other judges put this issue that more in the public eye, but it wasn’t his comments that precipitated the change . . . . I’ve lived with this issue for a long time [including as a prosecutor], and I decided it was something that we should review, and rather than causation. 39707-nys_72-2 Sheet No. 39 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 39 39707-nys_72-2 39707-nys_72-2 Sheet No. 40 Side A 01/15/2018 10:23:44 , 83 decade that is the Booker , it is unusual and chal- infra 345 F. Supp. 2d 1227 (D. Utah 2004) (Cassell, Social Influence, Social Meaning, and Deterrence , 342 by then-District Court Judge Paul Cassell, who Part IV.B. , Dan M. Kahan, 341 at 1261. 349, 362–64 (1997) (discussing the expressive value of various behav- A poignant, self-conscious example may be found in a . Id. See infra See, e.g. This case is different. It involves a first offender who will Having disposed of the legal arguments in this case, it EV By speaking out publicly, and in some instances with moral 340 Third, Third, there is expressive value to the “new” district court activ- 339 342. 340. 341. United States v. Angelos 339. But even in those cases, the sentences seemed to be within the realm of reason. receive a life sentence for crimes offenders—includingother many by committed far offend- violent less serious than those ers and even a murderer—who have been before me. For the reasons explained in my opinion, I am legally obligated to impose this sentence. But I feel ethically obligated to bring injustice to this the attention of those who are in a position to something do about it. seems appropriate to make some concluding, personal observations. I have been on the bench for nearly two-and-half years now. During that time, I have sentenced several fenders hundred of- under mandatory minimum the statutes. By and Sentencing large, have been the required to sentences impose Guidelines have I been tough but fair. few In cases, a and to be sure, I have felt that federal either the the Guidelines or mandatory minimums produced excessive punishment. . L. R A focus of this Article, demonstrating that strains of the “new” judicial activism, especially regarding sentencing, were present earlier—and lines the when charting difficulty judicial trends. of drawing ism. iors in different contexts, depending behavior). on the social meaning attached to that J.). Judge Cassell’s opinion in Angelos precedes the post- rily mandated sentence of fifty-five years’ imprisonment for stacked Section 924(c) gun charges. In a final section of his three lengthy opinion, entitled “Recommendations to Other Branches of Govern- ment,” Judge Cassell wrote: served only five years on the bench, in which he discussed a statuto- V 2018] THE “NEW” DISTRICT COURT ACTIVISM 257 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 71 15-JAN-18 9:53 2004 opinion outrage, outrage, the judges signal the importance of the identified. issues The they expressive have value of their speech precisely is because, as high, discussed further however, lenges conventional norms judge. about the appropriate role of the 39707-nys_72-2 Sheet No. 40 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 40 39707-nys_72-2 39707-nys_72-2 Sheet No. 40 Side B 01/15/2018 10:23:44 T. 345 . L. supra LA USTICE F OOPERA- J or em- C 465, 467 NTHONY . 12 (1993); , 65 347 A EV UBLIC RIMINAL P When a judge C 1442, 1443 (1983) . L. R see also ROFESSION AL 346 P L.J. C Simon & Sidner, note 51 (quoting Judge ALE EGAL Y , 76 L NCOURAGING see also supra ACHINERY OF 344 , 92 : E M AW L HE 766, 769 (1983); . EV , T DEALS OF THE I 101–38 (2002) (“[P]eople generalize from IBAS . L. R Legal Realism Now The Dimensions of Judicial Impartiality B D The speech also may have expressive RUST IN THE M AILING OURTS The Problem with the Courts: Black-Robed Bureaucracy, or Bureaucracy, Black-Robed Courts: the with Problem The 343 , T note 327, at 811 (stating that perpetuating “the illu- : F C UO ?, 42 TEPHANOS supra S AWYER J. H L UEN OLICE AND OST P L The Bureaucratization of the Judiciary & Y Patricia M. Wald, M. Patricia Reinhart, HE See See See generally YLER , T Fourth, there is something to be said for judges setting forth Such Such expressions of outrage or despair may be significant not 344. 347. 343. 345. Joseph William Singer, 346. Charles Gardner Geyh, R. T . 493, 510 (2014). EV OM RONMAN note 51 (quoting an individual who was sentenced in federal court for a drug K offense, who “took comfort” from the judge’s remarks at sentencing that the judge considered the mandatory sentence too harsh). Collegiality Under Challenge R TION WITH THE speaks or writes in a public forum, their we tone, and take can appropriate remedial evaluate action if necessary, the such remarks, as seeking disqualification in future cases or even tion. disciplinary ac- This may be preferable to a judge remaining silent value for the individual judge who engages in it and thereby affirms his or her own continued moral agency. sion that a connection exists between judicial silence and neutral decision-making [ ] may compromise our integrity in the eyes “judges possess of values, the ideals, people” and who philosophies” recognize and that may be “suspicious of who those deny this fact”). their views transparently. Since “[w]e are all legal realists now” only only to the other institutional actors members who of register Congress them, and the such Executive as Branch, very but specific also audience to involved the in a case who charged such it. as They may the be prosecutors valuable to the defendant, some humanity injecting into a process that otherwise can be highly imper- sonal and bureaucratic. T notwithstanding notwithstanding Chief Justice Roberts’ statement at his tion hearing, confirma- we understand that no judge is completely impartial in the sense of having no question ideological is or not policy who preferences. is The a perfectly Geyh impartial has judge, suggested, but who as is Charles “impartial enough.” (2012) (describing the increased mechanization of the criminal justice system); 258 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 72 15-JAN-18 9:53 their personal experiences with police officers and judges to form views about their the broader law and about their community.”); Owen M. Fiss, carry around”). (1988). (“[B]ureaucratization tends to corrode the individualistic processes that source are of the judicial legitimacy.”); Simon & Mark Bennett Sidner, as stating he “couldn’t live with myself if I didn’t speak out . . . . The burden of having given so many unjust sentences is a very heavy thing for me to 39707-nys_72-2 Sheet No. 40 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 40 39707-nys_72-2 39707-nys_72-2 Sheet No. 41 Side A 01/15/2018 10:23:44 OF- . 1, H . L , 32 RIM see also supra . J. C M A , 36 thus “tear[ing] the 85 (1997); 352 . 1483, 1483 (2004) (describ- (2004) 1483 1483, . EV ONGRESS L. R L. & C A Judge, a Renomination and the Cross-Burn- OFSTRA How Mandatory Are Mandatory Minimums? OURTS H (May 28, 2003), http://www.nytimes.com/ , C , 32 , but it is worth noting that such a devel- IMES 350 ATZMANN B. Reasons for Concern N.Y. T or ex parte conversations with litigants or gov- or litigants with conversations parte ex or , A Meditation on the First Principles of Judicial Ethics 348 A. K 349 , Nathan Greenblatt, , In re Charges of Judicial Misconduct, 769 F.3d 762 (D.C. Cir. OBERT R Defense-Oriented Judges Defense-Oriented 1227, 1241 (2004). . an actor “with a project, an agenda,” See, e.g. See, e.g. EV 351 However, However, there are also reasons to take a hard look at the Second, the norm that historically has kept this kind of speech 349. 348. 350. As Judge Robert Katzmann observed (before he became a judge on the 351. Charles Fried, L. R note 298 and accompanying text, discussing other career-related reasons for rarity. If it were to become the new norm, pate. that For value a would dissi- variety of reasons, it would become pervasive, seems unlikely that such speech “new” judicial activism, at least in some of of value expressive the its First, widespread. too become to it were cern forms, and for con- its on precisely depends issues charged politically on speech judicial STRA opment would not necessarily be desirable. rare is grounded in important Charles Fried judicial has written, values. when a As judge appears former contentious to Judge take issues, sides the on judge cian,” starts to look “more like a politi- ernmental ernmental actors. one of the difficulties presented was compiling said). an accurate record of what she 2014) (finding no ethics violation in a case brought against Fifth Circuit Court of Appeals Judge Edith Jones based on a speech she gave at a law school about death penalty litigation, where there was no transcript, recording, or prepared text, and 2018] ploying less scrutable methods in the service of desired ends, such lecture private a as THE “NEW” DISTRICT COURT ACTIVISM 259 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 73 15-JAN-18 9:53 to a high-ranking official at the Department of Justice). United States Court of Appeals for the Second Circuit), federal have judges been hesitant generally to opine on policy issues and legislation out of concern about the courts’ legitimacy and “the need to avoid prejudging issues that before them.” might come 2003/05/28/us/a-judge-a-renomination-and-the-cross-burning-case-that-won-t-end .html [https://perma.cc/9D7A-7463] (describing various actions District Judge taken Charles W. Pickering, Sr., by of Federal District Court U.S. in Louisiana, to persuade prosecutors to lower charges in a case, including an ex parte phone call ing practice of “back-rooming cases”—i.e., “informally seek[ing] a favorable non- trial disposition with the judge in a chamber behind the courtroom” and the thor’s discomfort au- with it); Neil A. Lewis, ing Case That Won’t End How Judges Can Avoid Imposing Mandatory Minimum Sentences judges to avoid controversy. 28 (2008) (“[J]udges can ‘facilitate’ a plea bargain or other prosecutorial decision by commenting, nudging, persuading, threatening, retaliating, and obstructing.”); Smith, Abbe 39707-nys_72-2 Sheet No. 41 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 41 39707-nys_72-2 39707-nys_72-2 Sheet No. 41 Side B 01/15/2018 10:23:44 Id. Id. 356 ODE C with 357 Managerial The Code of It encompasses 355 354 Canon 2. Canon 3 provides Id. 353 Canon 1. Canon 2 provides that a judge should “act note 346, at 512 (“For over two thousand years, being a note 346, at 499–509 (describing these different types of 374, 445 (1982) (“[T]he virtues of disinterest and disen- . UDGES EV supra supra notes 328–30 and accompanying text. U.S. J . L. R Canon 4. Canon 5 generally prohibits judges from engaging in any in engaging from judges prohibits generally 5 Canon 4. Canon Id. Geyh, Geyh, ARV H Id. Id. See See See supra , 96 Impartiality Impartiality is the core value of the judge. ONDUCT FOR 352. 353. 354. 356. For example, Canon 1 provides that “An independent and honorable 355. 357. C Canon 3. Canon 4 provides that extrajudicial activity is permissible so long as it Canon 5. OF view of impartiality, repeatedly emphasizing the need to maintain axes. all along impartiality of appearance the and reality the both Conduct for United States Judges incorporates this comprehensive not only the absence of any personal interest in a ward case or or bias against to- any party in a de- judge’s the color could that commitment ideological or political dispute, but also the absence of a cision in future cases or be perceived as doing so. good judge has meant being Judges an impartial judge.”); Judith Resnik, pressed an opinion concerning the merits of the particular case in controversy.” in case particular the of merits the concerning opinion an pressed does not “detract from the dignity of the judge’s office,” “reflect adversely on the judge’s impartiality” or “lead to frequent disqualification” because of the appear- bias. of ance at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” “should not allow family, social, political, financial, other or relationships to influence judicial conduct “hold or membership in judgment” any organization and that practices invidious should discrimination on not the basis of race, sex, religion, or national origin.” that a “judge should not make public comment on the merits of a matter pending or impending in any court,” and “shall disqualify himself or herself in a proceeding in which the judge’s impartiality when might “the judge has reasonably a personal be bias or questioned,” prejudice concerning a such party” or as “has ex- Whether a judge employs dicta or extrajudicial speech to views express on a policy subject, and perceived there impartiality. However, the are Canons omit risks how judges for are to the balance the judge’s call to actual participate in law reform efforts 260 robe of decorum which clothes [judges] in the aura of impartiality NYUand open-mindedness that . . . makes their role ANNUAL distinct and justifies SURVEY OFthe AMERICAN extraordinary power they enjoy.” LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 74 15-JAN-18 9:53 bias). judiciary is indispensable to justice in our society. enforce A high standards of conduct and judge should personally observe those should standards, maintain and so that the integrity and independence of the judiciary may be preserved.” gagement . . . form the bases of the judiciary’s authority.”). political activity related to holders of or parties, candidates or for organizations political “whose office, principal political purpose is political candidates to or advocate parties in for connection or with elections against for public office.” 39707-nys_72-2 Sheet No. 41 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 41 39707-nys_72-2 39707-nys_72-2 Sheet No. 42 Side A 01/15/2018 10:23:44 , ORDHAM F 182, 183 Justices 359 ORK , 85 360 Y EW N . 1371, 1377–78 (1995) The Rhetoric of Results and Results of Rhetoric The EV ITY OF Appeal Waivers and the Future C . L. R HI AR OF THE U. C B at 88 (noting the ambiguity in the Canons , in fact are unreviewable. Many oc- , 62 361 Limitations on Judicial Activism in Criminal Trials 209, 212 (2005) (noting that, in the authors’ ran- N OF THE The Court of Appeals as the Middle Child ’ note 350 note SS L.J. A supra UKE , D , 55 , Michael Pinard, , Nancy J. King & Michael E. O’Neill, . 243, 254–66 (2000) (trial judges’ commentary on evidence, ques- Even when an appeal is filed, doctrines such as harm- ATZMANN EV K ECORD OF THE 362 Raymond Lohier, R See See, e.g. See See, e.g. . L. R HE 945, 945 (2016) (describing judges of the Courts of Appeals as “each not . T 358 Moreover, although the decisions of a district court judge are, Maintaining Maintaining the perception of impartiality is a concern for all 358. 362. 359. 361. 360. As Judge Learned Hand once described the ephemeral nature of much ONN EV C of the Supreme Court need a majority. District court judges not persuade need anyone else. They render far more decisions, in many more cases, than any other category of judge. And unlike the Court of Appeals or the Supreme Court, only a fraction of the made decisions by a District Court judge are reduced to writing. Jeopardy). cur in the context of an ongoing trial or subject proceeding to and are review not until the proceeding has concluded. many Even then, will not be reviewed because (because, no for appeal example, is of or a may waiver be of filed appellate rights or Double in theory, subject to appellate review, more so than the decisions of the Courts of Appeals, many decisions rendered by a district court judge or other actions taken judges, but it is arguably most important for district court District court judges may judges. be the lowest-ranked judges in the Article III federal judiciary, but they wield far more unchecked individuals power than as any other kind of judge. Judges on the Courts Appeals, who generally sit in panels of of three, must persuade at least one of their colleagues before they may exercise power. L. R 2018]the need to maintain their impartiality. This walk. is THE a “NEW” DISTRICT difficult COURT ACTIVISM line to 261 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 75 15-JAN-18 9:53 33 tioning of witnesses, and non-verbal behavior can influence the outcome of a trial by, inter alia, conveying to the jury the judge’s view of the case). much more than one-third of a judge”); Patricia M. Wald, M. Patricia judge”); a of one-third than more much the Results of Rhetoric: Judicial Writings and their commentary that should leaves participate in activities much having to do unclear, with substantial legal including changes not rectly di- “whether related to a the administrative judge and procedural aspects system”). of a running a court (1952). of Sentencing Policy of the trial judge’s work, it “takes place in the courtroom and either slips away into anonymity, or remains only in the transient recollection of those who may be present.” (describing the requirement of obtaining the votes of one’s colleagues reasoning for one’s as well as particular opinions). result as a constraint on rhetoric in appellate 39707-nys_72-2 Sheet No. 42 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 42 39707-nys_72-2 39707-nys_72-2 Sheet No. 42 Side B 01/15/2018 10:23:44 note see also Thus, As An- 383, 394 . supra 363 , EV 364 . L. R RIZ A , 56 “It’s Called Lunch”: Judicial Ethics Indeed, this very concern 365 at 168 (an unprincipled district court , note 12 note 313, at 867 (noting the “relation between the supra note 346, at 544–51 (observing that, when courts’ impar- , Limits of Judges’ Learning, Speaking, and Acting supra Judicial Independence, Judicial Accountability, and Interbranch Re- RANK supra 909, 913 (2007) (“[I]f judges are policy agents, they should be F , . L.J. Geyh, Kaufman, Weinstein, EO G See, e.g. See See See , 95 If that trust erodes, the courts’ legitimacy also may be called note 349, at 9–30 (describing the myriad options available to a district court 363. 364. 366. 365. 366 prompted Chief Justice Rehnquist to write to a senior district court judge in 1993 that he did not upon mind taking senior that status, not the to accept future judge drug cases had on ideo- decided, logical grounds, only the publicity surrounding his decision to do so. disqualification motions, and hostility to reforms promoted by the bench. into doubt more broadly, leading individual judges, and their decisions, to come under attacks from the political branches. the threat of appellate reversal is in many instances a relatively weak relatively a instances many in is reversal appellate of threat the constraint on district court judges. This is particularly spect to so some rulings with against the re- government in criminal prosecutions because of Double Jeopardy. The repeat participants criminal justice in system know the all of this and nevertheless must trust district court judges to discharge their duties faithfully and impartially. A loss of trust at the local level could lead to judge shopping, drew Kaufman has observed, this dynamic effect—once has judges a start acting one-way more ratchet like politicians, they will viewed and be treated as such by others. dom sample of federal cases resolved by plea agreement and year sentenced 2003, in nearly fiscal two-thirds of those agreements included right defendants’ to waiver appeal). of 262less error and deference to district court findings of fact and credi- NYU bility ANNUAL determinations SURVEY often preclude OF meaningful review. AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 76 15-JAN-18 9:53 ‘accountable’ for their decisions in individual issues cases of high (or salience).”); at Dr. Roger least E. Hartley, those involving and the Political and Legal Space for the Judiciary to “Lobby” judge could “without fear of challenge, ‘fudge’ the supra facts he finds”); Greenblatt, judge to avoid the application of mandatory minimum sentences, many effectively unreviewable). tiality is perceived as being inadequately addressed in the ethical and procedural dimensions, regulation in the political dimension increases). (2014) (“[When judges] are viewed as taking sides on controversial issues . . . this of have public the and leaders elected that impression the to harm larger do might the branch”). 10, at 11–12 & n.55 (quoting Letter from William H. Rehnquist, Chief Justice of Stephen B. Burbank, lations willingness of judges to enter into the public fray and the increasing tendency of some academics and some media figures to equate judges with legislators”); 39707-nys_72-2 Sheet No. 42 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 42 39707-nys_72-2 39707-nys_72-2 Sheet No. 43 Side A 01/15/2018 10:23:44 L. , 81 , 113 OFSTRA H s, 32 It would be a 367 Of course, district 369 Flouting Article III’s re- note 298, at 430–32at 298, note (describing 371 supra Gertner, The Real Issues of Judicial Ethic An Old Judicial Role for a New Litigation Era Judging Under the Constitution: Dicta About Dicta see also see 368 note 346, at 545 (“To date, district judges have largely Doe v. United States, 833 F.3d 192, 200–01 (2d Cir. 2016) supra note 322 (discussing number of district court vacancies). , Alex Kozinski, see also . 1249, 1259–60 (2006) (discussing interaction between dicta and Jonathan T. Molot, Pierre N. Leval, Geyh, EV See See See See supra See, e.g. This is not a mere technicality: the case or controversy re- 27, 32 (2003) (“[T]he judiciary’s traditional adjudicative role reflects its 370 Third, district court judges’ use of dicta as a vehicle for accom- Moreover, Moreover, if trial judges come to be viewed as political actors, 371. 370. 367. 368. 369. L.J. 1095, 1097–1031095, (2004); . EV ALE quirements thus potentially signals a disregard for the judge’s most R shame if it were to be otherwise. Given the recent change in administration and the number of lower court also vacancies could be to counterproductive be to the filled, aims of it many of the “new” district court activists. court judges do not have the option of writing a concurring or dissenting opinion. But there is a tension between III’s limitation dicta of federal courts’ and jurisdiction to “cases or Article controversies.” (Livingston, J., concurring) (suggesting that the cluded Court that of the Appeals, court having con- below lacked tioner’s jurisdiction application to for consider expungement, the should merits might not go of about “suggest assessing peti- and weighing” to the various relevant Congress considerations). how it Article III’s grant “Controversies”). of authority to federal courts to decide “Cases” and plishing policy ends provides special cause for concern. The Code of Conduct for U.S. Judges does not address opinion writing, a failure that several commentators have noted. then then there is little to stop a President from making based appointments on political views. Historically, this is a fate been avoided that at the has district court level, largely relative to appointments to the Courts of Appeals and the Supreme Court. the ethical dilemmas associated with opinion writing). Y Southern District of New York (May 25, 1993), explaining his remarks at a federal judges meeting, and referring specifically to the decisions made by Judges Knapp and Weinstein and their attendant publicity). N.Y.U. L. R the United States Supreme Court, to Whitman Knapp, District Court Judge for the 2018] THE “NEW” DISTRICT COURT ACTIVISM 263 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 77 15-JAN-18 9:53 quirement reflects in part courts’ core competency of adjudicating disputes rather than formulating policy. core institutional competence. Judges are ideally disputes, suited rather to than to resolve frame disputes party-framed themselves, because they lack tional the capacity that other government institu- officials have to initiate and conduct factual investigations.”); avoided the highly politicized confirmation preme Court and showdowns circuit court nominees.”). that have plagued Su- 39707-nys_72-2 Sheet No. 43 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 43 39707-nys_72-2 39707-nys_72-2 Sheet No. 43 Side B 01/15/2018 10:23:44 See . L. OLUM C 423, 462–65 Y , 84 ’ OL Such excesses not Thus, lengthy treat- J.L. & P 375 373 , law review article, or , 5 Canon 2. Ideally, rule changes, pro- 376 UDGES Supervising Criminal Investigations: The 57(a)(1). at 89 (“The canons do not consider how note 308, at 255–56 (suggesting that the , U.S. J . P. There are also prudential reasons to Reconsidering Supervisory Power in Criminal Cases: supra RIM 372 note 350 Law Without Order) . R. C ED ONDUCT FOR supra F , C or their supervisory power. , Lebovits et al., , Sara Sun Beale, note 183, at 55 n.275. Rule 57 provides that a local rule “must be ODE OF 374 ATZMANN C 377 K United States v. Morrison, 529 U.S. 598, 625–26 (2000) (describing supra See, e.g. See, e.g. Cf. Cf. Fourth, when district courts engage in local rulemaking, issue 1433, 1455–56 (1984); John Gleeson, 372. For example, Canon 2 of the Code of Conduct for U.S. Judges provides 375. 373. 374. 28 U.S.C. §§ 2071–77 (2012). Through Section 2017 of that Act and 377. 376. . EV R only risk legal challenges by prosecutors, but, like judicial opinions or extrajudicial speech, such quasi-legislative activities could undermine trust in the judges’ impartiality and role fidelity. Thus judges operating in all these spheres must be very attuned to the nuances of their language, tone, and context. phylactic orders, and new programs would be initiated cultivating the genuine buy-in of all only local actors, based on a persua- after sive record of their necessity and responsiveness to local facts and conditions. avoid avoid dicta, including that it can render judicial opinions unneces- sarily long and potentially obfuscate the law. Constitutional and Statutory Limits on the Authority of the Federal Courts standing orders, or create careful diversionary not to programs, overstep they their delegated must authority under Enabling be the Act Rules ments of a policy subject, when they are not necessary to the court’s but slim Frankel’s Marvin (like book a in put better be may holding, inordinately influential speech, rather than a judicial opinion, more even likely to if get attention the or be latter considered “citable” may by lawyers. be that “[a] judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality the of judiciary.” Proper Scope of the Supervisory Power of Federal Judges 264 essential institutional role. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 78 15-JAN-18 9:53 liberal inclusion of dicta in judicial opinions opinions longer and harder is to decipher, with unethical “the potential because to obscure holdings” it makes and the invite “incorrect predictions”). Rule 57 of the Federal Rules of Criminal Procedure, Congress has authorized the Procedure. Criminal of Rules the in gaps in fill and tune” “fine to courts district McConkie, consistent with—but not duplicative of—federal statutes and rules adopted under” the Rules Enabling Act. such variables as substance and form, conjoining in a the multiplicity propriety of of communication.”). ways, affect (1997). test developed by U.S. Supreme Court to assess prophylactic legislation under Sec- tion 5 of the Fourteenth Amendment as requiring a “congruence and proportion- 39707-nys_72-2 Sheet No. 43 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 43 39707-nys_72-2 39707-nys_72-2 Sheet No. 44 Side A 01/15/2018 10:23:44 . . ED . L. UFF F B OL See also , 16 , , 9 Mandatory U. T ; Samuel T. ) , 47 Some judges USTICE 379 J If the United States T OF ’ 381 EP 161, 162 (2001) (discussing case U.S. D . EP R G ’ Justice Department Administration of the Presi- ENT § 1-2.111 ( Clemency: A View from the Bench of Two Commuta- In the modern era, input from district . S ED 378 F ANUAL M , 13 YS ’ TT , David S. Doty, , United States v. Angelos, 345 F. Supp. 2d 1227, 1263 (D. Utah C. Possible New Mechanisms of Judicial Input U.S. A 1, 39 (2005) (discussing the pardon process). 1. A Greater Institutionalized Role in Clemency . Margaret Colgate Love, 212 (2004). . EV The more routine course, which is set forth in the non- See, e.g. See See, e.g. See EP The Politics of Grace: On the Moral Justification of Executive Clemency 380 R Because Because these concerns identified above are real—and may be One possible way for district court judges to make their views G note 342 and accompanying text. . L. R ’ 379. 378. 380. 381. . 89, 93 (2015); George Lardner, Jr., & Margaret Colgate Love, RIM EV ENT S C tions—Vignali and Willis R Attorney’s Office does not wish to seek the judge’s views, don the Attorney Par- may do so. In any event, such consultation is discretionary and depends upon a clemency petition having (no small been feat filed for those serving long sentences who generally lack both constraining and skewing the public debate, leading only the most intrepid and passionate judges who are unhappy with the sta- engage—thisto quo tus mech- possible other some explores section anisms to elicit feedback from trial court judges. court judges appears to be somewhat haphazard. on their own initiative have sent copies of their sentencing opinions sentencing their of copies sent have initiative own their on to the Pardon Attorney at the despaired Department of that Justice, when they they had tence. no discretion to impose a lower sen- known on sentencing policy would be to tionalized create role for district a court judges in greater the clemency process. institu- At one time, district court spoke up somewhat regularly in support of judges clemency petitions from in the United defendants they States had sentenced to mandatory apparently penalties, when they thought them too harsh. ality between the injury to be prevented or remedied and the that means end”) adopted (internal citations to omitted). 2018] THE “NEW” DISTRICT COURT ACTIVISM 265 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 79 15-JAN-18 9:53 Attorney’s Office that handled a case to ask the filed. been has it once petition a on views her sentencing judge binding United States Attorneys’ Manual, is for the United States where the judge “was not asked by anyone to respond” to a petition for clemency). its with opinion the of copy a forward to office Clerk’s (directing J.) (Cassell, 2004) commutation recommendation to the Office of supra the Pardon Attorney). dent’s Pardon Power: A Case Study in Institutional Conflicts of Interest Morison, Sentences and Presidential Mercy: The Role of Judges in Pardon Cases, 1790–1850Cases, Pardon in Judges of Role The Mercy: Presidential and Sentences 39707-nys_72-2 Sheet No. 44 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 44 39707-nys_72-2 39707-nys_72-2 Sheet No. 44 Side B 01/15/2018 10:23:44 , https://www . AWS . L EF . D Taking Another Look at Second- there is no reason why RIM C 382 art. II, § 2, cl.1. . several bar associations and N OF ’ 384 SS ONST A L ’ AT U.S. C 149 (2015) (discussing the MPC proposal to N Those groups are disbanding with the . , Meghan J. Ryan, , EV 385 These records would be helpful both in 383 See, e.g. . L. R ROOK B notes 296 and accompanying text. , 81 See supra See Clemency Project 2014 Although Although the sentencing judge’s recommendation will never District court judges also potentially could play a role in refer- 382. Article II, section 2 of the Constitution gives the power exclusively to the 384. 385. 383. This would be separate from other proposals to provide an opportunity other organizations created mechanisms for screening and taking on clients for the prosecution of clemency petitions and recruited attorneys to handle them. the judgment. ring defendants to counsel for assistance in preparing clemency petitions. In the reinvigorate wake the clemency process, of the Obama Administration’s effort to circumstances when the judge has died before a petition has been filed (not necessarily so uncommon, given the length of sentences often meted out), and when a living judge, by the time a petition is filed, no longer has a distinct memory of prove the case. a valuable It also resource would Commission and that the Judicial Branch—for example, the Federal Ju- researchers with the dicial Sentencing Center—could use to track judges’ with granularity views in cases where (precisely about because the judge has sentencing no discretion) the judge’s initial views generally will not be reflected in served. There also could be whereby the sentencing a judge could be asked after second-stage a set interval of part of time the to reevaluate process, the sentence in light of the judge’s subsequent sentencing experience. judges could not play a more regular role in clemency. For example, at the time of sentencing, a judge could be asked to record her initial views on whether the case is a reasonable candidate for clemency and why. Those views could be recorded in the original court documents generated with the judgment so that they would be pre- President to “grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” 266 counsel) and on the Executive Branch seeking the judge’s input. If NYUthe ANNUAL sentencing judge has since SURVEYdied, there is no OFjudicial input. AMERICAN LAWbe more than advisory [Vol. 72:187 to the President, \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 80 15-JAN-18 9:53 provide sentencing judges the authority to adjust a sentence fifteen years was after imposed). Unlike it true second look sentencing, the proposal I describe would not require legislative action. for “second look” sentencing—i.e., by authorizing the judge to adjust the sentence after a set period of time. Look Sentencing .nacdl.org/cp2014 [https://perma.cc/2HG4-N3ZW] (listing participating organizations, including the American Bar Association, the American Civil Liberties 39707-nys_72-2 Sheet No. 44 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 44 39707-nys_72-2 39707-nys_72-2 Sheet No. 45 Side A 01/15/2018 10:23:44 A.B.A. J. The re- , 34 388 Canon 2B Commentary UDGES —has not yet addressed. the jaws of judges concerned 386 U.S. J 387 . 569, 570 (2007) (quoting Felix Frankfurter, EV ONDUCT FOR and Exit Interviews , Understanding “Judicial Lockjaw”: The Debate Over Ex- C N.Y.U. L. R ODE OF note 302. C 82 , Leslie B. Dubeck See supra See See, e.g. 2. Annual Open-Ended Surveys of District Court Judges Taking the pulse of federal trial judges in this way might be Judges also could be asked, on an annual basis, what criminal 386. 387. 388. Presently, the Sentencing Commission regularly polls judges, and judges are invited to testify and submit remarks to the Commission. However, such communications are limited to The Judicial sentencing Council conducts issues. surveys of judges on other discrete issues, but they are not regular. Nor are they generally open-ended. exactly what is required to “unlock” about the future of the criminal justice system but who have been hesitant to speak in other fora, a dynamic that may be masking the depth or range of judicial views on official request various is consistent subjects. with the distinction An that judicial internal, ethics rules make in a variety of other contexts between responding to a request for information and volunteering to provide it. justice policy issues in their view need attention. The Federal Judi- cial Center, which already conducts research for the federal judiciary, could undertake this project and analyze the results, or it could be conducted by a separate entity. For example, this would provide a forum for a judge to express support for an update to the criminal discovery rules, or for greater use of diversionary programs, or some other new issue through that its the subject-area Judicial committees Conference—including Union, Families Against Mandatory Minimums, the Federal Public and nity Defenders, Commu- and the National Association of Criminal Defense Lawyers). 656, 658 (1948)). sentencing. 2018]end of the Obama Administration and its clemency initiative. But if bar associations were to reinstate those programs, judges could con- THE “NEW” DISTRICT COURT ACTIVISMto necessary resources the with sentencing, at even defendants, nect pursue the only option that remains, even if it is a long shot. could This be valuable in cases where there is no appellate reason or to collateral think that review 267 will yield dant’s any sentence, change because, for in example, the the defen- mandatory sentence is the result of a guilty plea. Neither of these initiatives would require judges to speak or write publicly about their general views on \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 81 15-JAN-18 9:53 Personal Ambitions of Judges: Should a Judge ‘Think Beyond the Judicial”? (Judges may respond to requests for information from another sentencing judge, trajudicial Activity, 39707-nys_72-2 Sheet No. 45 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 45 39707-nys_72-2 39707-nys_72-2 Sheet No. 45 Side B 01/15/2018 10:23:44 239, 259 . L. RIM Marvin Frankel’s Mis- J. C 269, 286 (2000) (“[T]he . EV ERKELEY B . L. R Its structure has resulted in , 13 AL 390 C note 350, at 100–06 (suggesting a variety Williams-Yulee v. Florida Bar, 135 S. Ct. cf. , 74 S. supra , note 350, at 100. The Programmatic Judiciary: Lobbying, Judging, and Invali- ATZMANN supra K , , See, e.g. See, ATZMANN K 3. A Judicial Clearinghouse and Dissent Channel Judith Resnik, or express dissent. Currently, the Judicial Conference sets See See The creation of an official channel for additional 389 391 A third possibility would be to create a clearinghouse channel Finally, in addition to annual surveys, the Federal Judicial 391. 390. 389. Other commentators have called for similar facilitator entities within the sitions adopted by the Judicial Conference generally aged. are discour- those communications being relatively infrequent and scope. Statements by individual limited judges who disagree with policy po- in within the Judicial Branch that could provide an authorized forum for judges to write white papers, other conduct educational judges, panels communicate for with ment, the other branches of govern- or a probation or corrections officer but Judges also may should respond to requests by screening committees for information con- not “initiate communications.” sidering potential judicial nominees); to cover a wide range of subjects with experienced trial judges, preserving their remarks for future research and analysis. 268 sults of the surveys could be put to a variety NYUof uses, including ting set- ANNUALthe agenda for the Judicial Conference, SURVEYwhose leadership and OF committees AMERICANmight not be LAWaware of the concerns thereby revealed, or the level of support on an issue. It also could be [Vol. used in 72:187 preparing reports for internal and external consumption. Center could conduct more detailed “exit interviews” with who judges have announced their intention to retire or bench. Such interviews could take full advantage of the opportunity resign from the \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 82 15-JAN-18 9:53 the policy agenda and operates as a gatekeeper to official communications on behalf of the Judiciary. federal judiciary has developed an etiquette of quieting dissent. Official policy stated, is conveyed to Congress or others through who designated disagree speakers, are and told those that it is structuring modes of inappropriate generating policy, to members of do the Article so III judiciary publicly. have Thus, crafted through mechanisms reconsideration.”). that damp down dissent and limit occasions for dating the Violence Against Women Act of means to foster inter-branch dialogue on a wide range of issues in which courts and Congress are interested); Lynn Adelman & Jon Deitrich, takes and the Need to Rethink Federal Sentencing about sentencing). (2008) (calling for the creation of a “facilitator of communication” among judges 1656 (2015) (upholding distinction drawn by Florida bar rules that allowed candidates for elected judicial office to send “thank you” notes for campaign donations, but not to solicit them). Branch. Judicial 39707-nys_72-2 Sheet No. 45 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 45 39707-nys_72-2 39707-nys_72-2 Sheet No. 46 Side A 01/15/2018 10:23:44 But 392 Like the State Depart- note 391, at 289 (the com- 394 White House Slap at Dissenting Dip- supra , V. , there has been a notable burst of (Jan. 30, 2017), http://www.politico.com/ CONCLUSION Booker OLITICO P , note 350, at 102. supra The Programmatic Judiciary , Resnik, 2 FAM 071 (A dissent channel adopted to facilitate “open, creative, ATZMANN K See See This clearinghouse could include an internal RSS feed for In the decade since Any judge who wishes to effect real change might well decide 392. 393. 394. 393 cially among Article III judges, could be very valuable. Judges could share concerns, ideas, and local innovations. Such would a side-channel also help ensure that future judges wider frame than view that provided by policy official Judicial Conference issues pol- in a icy. providing more opportunities for informal communication, espe- ment’s channel, this could be a vehicle for district court judges to highest the at considered are disagreements policy their that ensure levels of the Judiciary. federal district court engagement in the project of criminal justice reform. A cohort of well-respected and experienced district court 2018] communication, albeit not on behalf of the entire judiciary, might prove welcome for THE “NEW” those DISTRICT COURT judges ACTIVISMwho wish to engage other, with members of Congress and with their staff, and with the Exec- one an- utive Branch more regularly on policy issues. as a matter of 269 strategy to seek approval ence from before formally communicating the a position to Congress, Judicial as the Confer- imprimatur of the Judicial Conference “has special force.” \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 83 15-JAN-18 9:53 district court judges, regularly scheduled meetings (even by audio- visual conference) between judges and House or Senate Judiciary Committee staffers, and any number of other fora that might have seemed far-fetched years ago but that new technologies make both possible and relatively inexpensive. Another feature of this clearinghouse function could be an authorized dissent channel like the one created by the State Department during the employees to express Vietnam constructive dissent. War for its story/2017/01/trump-immigration-ban-state-department-diseent-channel-memo- 234364 [https://perma.cc/8MBK-3S4Z] (discussing history of State Department Dissent Channel). turation within the judiciary itself. . . . As new judges are appointed and become a part of the judiciary, its institutional platform becomes a constitutive what element they understand of the federal judiciary to be about.”). mitments by the Judicial Conference “become a vehicle for education and accul- and uncensored dialogue on substantive foreign policy issues sional foreign affairs community”); within Nahal Toosi, the profes- lomats Sparks Fear of Reprisal 39707-nys_72-2 Sheet No. 46 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 46 39707-nys_72-2 39707-nys_72-2 Sheet No. 46 Side B 01/15/2018 10:23:44 On the other hand, how judges express their concerns matters. Some of these new means have resulted in concrete changes in What is interesting and arguably “new” about the recent activ- judges at any other level in our federal judiciary. When they speak up, we should listen. Because the core value of the judiciary is its impartiality, it is important that judges act in a manner that is and consistent that with cultivates that the public’s value trust in the judges’ fidelity to their role. That public trust is always crucial, but it is particularly so when our country is so divided, when few institutions are viewed as apolit- creation of diversionary programs, are relatively novel for courts. federal policy. But the “new” activism is valuable in other ways, even when its consequences are less sure. Through their opinions and extrajudicial activity, the judges are providing critical sues in feedback the administration of criminal justice that deserve attention. about is- That feedback is particularly important on policies disadvantage and already laws disempowered groups that (like criminal defendants), or where the adversarial down (as system when the otherwise interests of tends the parties to may quick, align break in lenient seeking resolution a of a corporate prosecution). judges Trial court are in fact better positioned to identify such issues than Act and the Sentencing Guidelines went into effect federal district in court judges the joined 1980s, the rest of the federal judiciary in protesting loudly and regularly—in their opinions and in extrajudicial fora—against the Guidelines and sentencing authority. the intrusion on their ity is that it has prosecutorial charging extended and settlement beyond policies, discovery, sentencing and the to collateral consequences of conviction. issues What once might have been such as construed as a defense of the trial judge’s prerogatives in a narrow slice of the criminal justice picture has become a more comprehensive engagement with the criminal justice system. And some of the means pursued, such as the local criminal discovery rules and the 270 judges has employed a variety NYU of which means ANNUAL to they reform SURVEY operate, the but OF system over in Sometimes the judges have exercised that limited authority to make which AMERICAN they LAW have limited authority. incremental advances through their legal rulings [Vol. or 72:187 through exercise of their supervisory powers; but they also have exhorted others to action, including the Executive branch, legislators, and the public. Although as a historical matter, this is not the traditional role of the federal district court judge, none new. of In fact, in the this years immediately after behavior the Sentencing Reform is entirely \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 84 15-JAN-18 9:53 39707-nys_72-2 Sheet No. 46 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 46 39707-nys_72-2 39707-nys_72-2 Sheet No. 47 Side A 01/15/2018 10:23:44 The “new” judicial activists—most of them Clinton appoin- to embrace this model for themselves. To be sure, the changed political environment may make their calculus different. It is for a careful evaluation time but not for disengagement. To the contrary, federal district court judges must continue to provide feedback and accountability to the judges, other and to branches the public, and of play a and part government, future in of the shaping criminal to the justice system. present other 2018] ical, and when so many questions regarding the limits of Executive and Legislative THE “NEW” authority DISTRICT COURT ACTIVISM are likely to courts. be decided by the federal tees—have presented a judges complex can model leverage 271 their for position, both court, how in the pursuit in of criminal justice reform. Other court judges, district espe- and court outside of cially the 270 Obama appointees, some of whom are now approach- ing their second decade on the bench, will have to decide whether \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 85 15-JAN-18 9:53 39707-nys_72-2 Sheet No. 47 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 47 39707-nys_72-2 39707-nys_72-2 Sheet No. 47 Side B 01/15/2018 10:23:44 H.W. Bush Reagan Clinton Clinton , https://www.fjc.gov/history/judges . general; law professor practice; law professor private practice; Clinton NY state assistant attorney general; FAA chief counsel legal aid lawyer Clinton judge; privatepractice Clinton including civil rights Biographical Directory of Article III Federal TR VI. C APPENDIX* UDICIAL Resigned in2007 associate deputy attorney Bush Resigned in1978 Solicitor General; private Johnson Retired in2011 lawyerResigned in2016 prosecutor Clinton Clinton . J ED F , Judge Year name) District Retirement Background President President * Information compiled from the order by last Commission/ Appointing Appointing (alphabetical Received Party of Judges Discussed in Text Judges, 1789–present Nancy Gertner D. Mass.John Gleeson 1994 E.D.N.Y. 1994 Civil rights Bill Federal Democrat Bill Democrat Marvin Frankel S.D.N.Y. 1965Paul Friedman D.D.C.Nicholas Garaufis Assistant to the E.D.N.Y. Lyndon 1994 2000 Democrat Prosecutor Prosecutor; Bill Bill Democrat Democrat Mark Bennett N.D. Iowa 1994Frederic Block E.D.N.Y.Paul Cassell Magistrate 1994 Bill D. Utah 2002Anne Conway Private practice Bill Democrat Raymond Dearie M.D. Fla. E.D.N.Y. 1991 Prosecutor; 1986 Democrat George W. Republican Private practice George Prosecutor Republican Ronald Republican 272 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 Lynn Adelman E.D. Wis. 1995 State senator; Bill Democrat \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 86 15-JAN-18 9:53 [https://perma.cc/HE3T-L5GB]. 39707-nys_72-2 Sheet No. 47 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 47 39707-nys_72-2 39707-nys_72-2 Sheet No. 48 Side A 01/15/2018 10:23:44 to DC courts by Presidents Bush and Reagan) Clinton Johnson Reagan prosecutor;private lawyer Clinton federal prosecutor court and courtof appeals Clinton judge (but appointed Commissioner of Housing special counselto Bush congressional investigatory committees; private practice; law professor law; CA municipal court judge Retired in2010 attorney; private practice; Reagan Died in 1988 NY State Truman Took seniorstatus in general counsel2009, retired Carter in 2012 adjunct for the INS; professor of Judge Year name) District Retirement Background President President order by last Commission/ Appointing Appointing (alphabetical Received Party of Jack Weinstein E.D.N.Y.Mark Wolf 1967 D. Mass. 1985 Law professor Lyndon Prosecutor Democrat Ronald Republican Emmett Sullivan D.D.C. 1994 DC superiorStefan Underhill Bill D. Conn.Edward Weinfeld 1999 S.D.N.Y. Democrat 1950 Private practice Bill Private practice; Harry Democrat Democrat Marilyn Hall Patel N.D. Cal. 1980 Private practice; JimmyJed Rakoff Democrat James Rosenbaum S.D.N.Y. D. Minn. 1996 1985 Federal Civil service Ronald Bill Republican Democrat 2018] THE “NEW” DISTRICT COURT ACTIVISMRichard Leon 273 D.D.C. 2001 Prosecutor; George W. Republican \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 87 15-JAN-18 9:53 39707-nys_72-2 Sheet No. 48 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 48 39707-nys_72-2 39707-nys_72-2 Sheet No. 48 Side B 01/15/2018 10:23:44 274 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 88 15-JAN-18 9:53 39707-nys_72-2 Sheet No. 48 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 48 39707-nys_72-2